SELECTED  CASES 
ON  CONTRACTS 

PIERSON  AND  GALLENDER 

(SIXTH  EDITION) 


STANDARD    GASB     BOOK 

SERIES 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


«_ 


SELECTED 
CASES  ON  CONTRACTS 

ARRANGED  FOR 

The  use  of  Students  of  Business  Law 


— by- 
Ward  W.  PlERSON 

of    the    Philadelphia    Bar 

Professor  of  Law 

— AND— 

Clarence  N.  Callender 

of  the   Philadelphia   Bar 

Instructor  of  Law 


WHARTON  SCHOOL 
University  of  Pennsylvania 


SIXTH   EDITION 


philadelphia 

Moore,  Rettew  &  Budenz 

614  Chestnut  Street 

1919 


T 


COPYRIGHT.    19t8 

WARD    W.    PIERSON 

CLARENCE    N.    CALLENDEB 

PHILADELPHIA 


ss 


PREFACE 

SIXTH   EDITION 


THIS  CASE  BOOK  has  been  prepared  for  the  special 
use  of  students  taking  a  course  in  Business  Law 
in  Universities  and  Colleges.  It  is  not  intended 
for  lawyers  nor  for  students  in  law  schools.  Its  immediate 
purpose  is  to  supply  a  set  of  convenient  working  models  for 
those  about  to  enter  business.  The  study  of  a  text  book  on 
Business  Law  is  often  nothing  more  than  a  memory  exer- 
cise. The  study  of  the  cases  submitted  herewith  should,  by 
providing  concrete  instances  in  the  form  of  decided  cases, 
give  an  increased  facility  in  meeting  the  everyday  legal 
problems  that  so  often  confront  the  business  man. 

In  many  of  the  cases  we  have  abridged  the  statement 
of  facts.  This  has  been  done  without  calling  attention  to 
the  matter.  Portions  of  opinons  on  points  irrelevant  to 
the  subject  illustrated  are  omitted.  These  omissions  are 
indicated.  Wherever,  in  the  course  of  the  opinion  of  the 
Court,  a  group  of  authorities  are  cited,  these  citations  are 
abridged.  The  case  books  on  Contracts  prepared  by  Keener, 
and  by  Huffcut  and  Woodruff,  have  been  of  much  assist- 
ance to  us,  and  acknowledgment  is  made  therefor. 

Through  the  courtesy  of  the  American  Law  Book 
Company,  the  editors  are  able  to  present,  as  an  Appendix, 
a  comprehensive  analysis  of  the  Law  of  Contracts  sub- 
stantially as  it  appears  in  Cyc.  This  analysis  is  reproduced 
subject  to  the  copyright  of  the  American  Law  Book  Com- 
pany. 

A  few  of  the  cases  in  the  earlier  editions  have  been 
replaced  by  decisions  that  are  more  recent,  and  more  clearly 
illustrate  certain  of  the  principles  involved  in  Business  Law. 
A  number  of  footnotes  have  been  introduced  to  cover  new 
points,  and  a  glossary  has  been  added. 

This  volume  is  dedicated  to  every  one  who  finds  it 
useful. 

Ward  W.  Pierson, 
October  /    1919  Clarence  N.  Callender. 


Table  of  Contents 


PAGE 

Table  of  Cases x 

PART  I 

FORMATION  OF  CONTRACTS 

Chapter  I 

OFFER  AND  ACCEPTANCE 

1.  In  General. 

a.  Express  and  implied  contracts 1 

b.  Necessity   for  offer  and  acceptance 5 

c.  Common    intention    necessary 7 

d.  What   constitutes    a  final   agreement 9 

2.  Requisites  of  Offer. 

a.  Offer    must    be    definite 15,  18 

b.  Offer  or  acceptance  or  both  may  be  made  by  words 

or  conduct    19,  23 

c.  Seriousness    of    intent 24 

1.  Promissory    expressions     25,  27 

2.  Invitation  to  purchase   (quotation  of  price)...  30 

3.  Competitive   bids    as    offers    34 

d.  Offer    must    be    communicated 36 

3.  Requisites  of  Acceptance. 

a.  Acceptance   must  be   communicated 39 

b.  What  amounts  to  communication  of  acceptance 43 

c.  Acceptance  must  not  vary  from  terms  of  offer 49 

d.  Acceptance    by   act 50 

4.  Revocation. 

a.  Right  to  revoke  an  offer  before  acceptance 52 

b.  Effect  of  option  on  right  to  revoke  offer 54 

c.  Necessity  for  communication  of  revocation  of  offer.  60 

5.  Lapse. 

a.  Offer  must  be  accepted  within  reasonable  time 62 

b.  Lapse — Failure  to  accept  in  manner  prescribed 65 

c.  Lapse — Passage  of   time 69 

d.  Lapse — Death   of  the  offeror 70 

6.  Conclusion. 

a.     Offer  is  made  irrevocable  by  acceptance 71 


Chapter  II 
SEAL  AND  CONSIDERATION 

PAGE 

1.  Seal    74 

2.  Consideration. 

a.  Definition  of  and  necessity  for  consideration 77 

b.  Surrender  of  right  as  a  consideration 80 

c.  Forbearance,   disadvantage   suffered,  etc.,   as  a  con- 

sideration     82,  83,  86,  88 

d.  Composition  with  creditors— Promise  for  a  promise  89 

e.  Consideration  need  not  be  adequate 92,  9J 

/.     Consideration  must  be  real 96 

g.     Doing  what   one   is   legally  bound  to   do — Contract 

obligation     99,  100 

h.     Doing  what  one  is  legally  bound  to  do — Non-con- 
tract   obligation 103,  106 

i.     Accord   and   satisfaction 108 

;'.     Consideration  must  be  mutual 112 

k.    Past  consideration  and  moral  obligation 116 

/.     Past  consideration  founded  on  previous  request. . . .  121 

m.   Consideration  must  be  possible 123 

n.     Failure   of   consideration    124 


Chapter  III 

CAPACITY  OF  PARTIES 

1.  Contracts  of  Infants. 

a.  Infants'    contracts    for    necessaries 126 

b.  Voidable  contracts  of  infants 127 

c.  Executed   contracts   of   infants 130 

d.  Effect    of    disaffirmance 133 

c.     Return  of  consideration  after  disaffirmance 136 

/.     Liability  of  infants   for  deceit 139 

2.  Contracts  of  Persons  Mentally  Deficient. 

a.  What   constitutes    mental   incapacity — Insanity 143 

b.  Contractual    power    of    persons    lacking   mental    ca- 

pacity      146 

(-.     Contractural  powers  of  intoxicated  persons 148 

3.  Contracts  of  Corporations  150 

4.  Contracts  of  Married  Women 152 


Chapter  IV 
REALITY  OF  CONSENT 

PAGE 

Mistake. 

a.  Mutual  mistake  as  to  subject  matter 157 

b.  Mutual    mistake — Reformation   of    deed 159 

c.  Mistake  of  one  party  as  to  identity  of  other  party. .  161 

d.  Mistake  of  one  party  as  to  terms  of  written  contract  164 

Misrepresentation. 

a.  What    constitutes    misrepresentation 168 

b.  Misrepresentation — Warranties     172 

Fraud. 

a.  Statements  not  amounting  to  fraud 175 

b.  What   constitutes    fraud 177,  181,  184 

c.  Damage — a  necessary  element  in  action  of  tort  for 

fraud    184 

Undue  Influence. 

a.  Contracts  between  persons  related 189 

b.  When  contract  of  lender  and  borrower  is  voidable      191 

c.  Contracts   between  persons   in  confidential   relation- 

ship          193 

Duress. 

a.     What  constitutes  duress 196,  200 


Chapter  V 

LEGALITY  OF  OBJECT 

1.  Contracts  Affecting  Public  Morals. 

a.  Sunday    contracts 206 

b.  Buying   stock   on   margin 207 

c.  Stock  gambling  contracts 208 

2.  Contracts  Affecting  Public  Government. 

a.     Interference  with  the  administration  of  the  law 209 

3.  Contracts  Affecting  Public  Policy. 

a.    Restraint  of  trade 212,  214 


Chapter  VI 
SPECIAL  FORMALITY        .  217 


PART  II 

OPERATION  OF  CONTRACT 

Chapter  VII 
PRIVITY  OF  CONTRACT 

PAGE 

1.     Privity — Lacking     221,  223 


Chapter  VIII 
ASSIGNMENT 


1.  Assignment  of  Rights  and  Duties 228 

2.  Assignment    of    Proceeds 230 


PART  III 

INTERPRETATION  OF  CONTRACTS 

Chapter  IX 
GENERAL  RULES  OF  CONSTRUCTION  235 


PART  IV 

DISCHARGE  OF  CONTRACTS 

Chapter  X 
DISCHARGE   BY  AGREEMENT 

1 .  Waiver  of  Condition  Allowing  Discharge 249 

2.  When  Right  of  Discharge  by  Condition  Subsequent  is 

Lost    250 


Chapter  XI 
DISCHARGE   BY   PERFORMANCE    252,  254,  257 


Chapter  XII 
DISCHARGE  BY  IMPOSSIBILITY 

PAGE 

1.  Destruction  of  Subject  Matter 252 

2.  When  Contract  Not  Discharged  by  Impossibility 265 


Chapter  XIII 
DISCHARGE  BY  OPERATION  OF  LAW  276 


Chapter  XIV 
BREACH 


1.  Transfer  in  Violation  of  Contract  Obligation 278 

2.  Renunciation   of   Contract 279 


Chapter  XV 
DAMAGES  FOR  BREACH   OF  CONTRACT 

1.  Liquidated  Damages  and  Penalties 281 

2.  Measure  of  Damages 283,  287 

3.  Equitable  Relief  from  Breach  of  Contract 290 


APPENDIX  I— OUTLINE  OF  CONTRACTS....     293 
APPENDIX    II— GLOSSARY 321 


Table  of  Cases  Reported 


PAGE 

Abbott  v.  Doane,  163  Mass.  433 100 

Averill  ct  al.  v.  Hedges,  12  Conn.  424 62 

Bainbridge  v.  Firmstone,  8  A.  &  E.  743 92 

Berg  v.  Erickson,  234  Fed.  817 266 

Boston  Ice  Co.  v.  Potter,  123  Mass.  28 221 

Brauer  v.  Shaw,  168  Mass.  198 60 

Burgesser  v.  Wendel,  73  N.  J.  L.  286 82 

Cabot  v.  Christie,  42  Vt.  121 177 

Carr  v.  Clough,  26  N.  H.  280 133 

Chandler  v.  Simmons,  97  Mass.  508 136 

Clifton  v.  Jackson  Iron  Co.,  74  Mich.  183 276 

Coleman  v.  Applegarth,  68  Md.  21 54 

Columbus,  etc.,  Railway  Co.  v.  Gaffney,  65  Ohio  104 5 

Cook  Sons  v.  Forker,  193  Pa.  461 206 

Cottington  v.  Swan,  128  Wis.  321 212 

Day  v.  Caton,  119  Mass.  513 50 

Deming  v.   Darling,   148   Mass.   504 175 

Dexter  v.  Norton,  47  N.  Y.  62 262 

Diamond  Match  Co.  v.  Roeber,  106  N.  Y.  473 214 

Duncan  v.  Butler,  47  Mich.  94 191 

Eliason  et  al.  v.  Henshaw,  4  Wheat.   (U.  S.)  225 65 

Erikson  v.  Ward,  266  111.  259 752 

Ezell  v.  Peyton,  134  Mo.  484 159 

Fairplay  School  Township  v.  O'Neal,  127  Ind.  95 18 

Fink  v.  Smith,  170  Pa.   124 103 

Fisher  v.  Seltzer,  23  Pa.  308 52 

Fitch  v.  Snedaker,  38  N.  Y.  248 36 

Fogg  v.  Portsmouth  Athenaeum,  44  N.  H.  115 19 

Galey  v.  Mellon,   172  Pa.  443 228 

Galusha  v.  Sherman,  81  N.  W.  Rep.   (Wis.)   495 200 

Gillespie  Tool  Co.  v.  Wilson,  123  Pa.  19 252 

Gribben  v.  Maxwell,  34  Kan.  8 146 

Hadley  v.   Baxendale,  9   Exch.  341 283 

Hamer  v.  Sidway,  124  N.  Y.  538 77 

Hertzog  v.  Hertzog,  29  Pa.  465 1 

Hickey  v.  O'Brien,   123   Mich.  611 71 

Higgins  v.  Lessig,  49  111.  App.  459 25 


PAGE 

Hill  v.  S.  B.  &  N.  Y.  R.  R.,  73  N.  Y.  351 164 

Hobbs  v.  Massasoit  Whip  Co.,  158  Mass.  194 23 

Hopkins  et  al.  v.  O'Kane,  169  Pa.  478 207 

Ingalls  v.  Miller,   121   Ind.   191 184 

Jaffray  v.  Davis,  124  N.  Y.  164 108 

James  v.  Newton  et  al,  142  Mass.  366 230 

Jenness  v.  Mt.  Hope  Iron  Co.,  53  Maine  20 49 

Johnson  v.  Lines,  6  W.  &  S.  (Pa.)  80 127 

Keller  v.  Holderman,  11  Mich.  248 24 

Kemble  v.  Farren,  6  Bingham   141 281 

Kline  v.  Kline,  57  Pa.   120 193 

Leskie  v.  Hazletine,   155   Pa.  98 34 

Lily  v.  Waggoner,  27  111.  395 143 

Lindsay  v.  Smith  &  Hoskins,  78  N.  C.  328 209 

Longworth  et  al,  Exrs.,  v.  Mitchell,  26  Ohio  334 69 

Lorah  v.  Nissley,  156  Pa.  329 74 

Marshalltown  Stone  Co.  v.  Mfg.  Co.,  114  Iowa  574 88 

Mellon  v.  Whipple,   1  Gray    (Mass.)    317 223 

Melroy  v.  Kemmerer,  Appellant,  218  Pa.  381 83 

Mills  v.  Wyman,  3  Pick.    (Mass.)   207 116 

Morse  v.  Woodworth,  155  Mass.  233 196 

Moulton  v.  Kershaw  et  al,  59  Wis.  316 30 

Nelson  v.   Boynton,  44   Mass.  396 217 

Nye  v.  Merriam,  35  Vt.  438 184 

Philadelphia  Ball  Club  v.  Lajoie,  202  Pa.  210 290 

Pratt,  Admx.,  v.  Baptist  Society,  93  111.  475 70 

Ray  v.  Thompson,  12  Cush.   (Mass.)  281 250 

Reif  v.   Paige,   55   Wis.  496 27 

Rice  v.  Butler,  160  N.  Y.  578 130 

Rice  v.  Boyer,  108  Ind.  472 139 

Robert  v.  Barnum,,  80  Ky.  28 89 

Roberts  v.  French,   153  Mass.  60 181 

Royal  Ins.  Co.  v.  Beatty,  119  Pa.  6 39 

Rupley  v.  Daggett,  74  111.  351 157 

Schnell  v.   Nell,   17   Ind.  29 96 

Sherman  v.  Kitsmiller,  17  S.  &  R.  45 15 

Sherwin  v.  Fletcher,   168  Mass.  413 86 

Singerly  v.  Thayer,  108  Pa.  291 254 

Slater  Woolen  Co.  v.  Lamb,  143  Mass.  420 150 

Smith  v.  Whildin,  10  Pa.  39 106 

Smock  v.  Pierson,  68  Ind.  405 93 

Spurr  v.  Benedict,  99  Mass.  463 168 

Stevens  v.  Coon,  1   Pinn.    (Wis.)    356 123 

Stilk  v.  Myrick,  2  Camp.  317 99 

St.  Louis  R.  R.  v.  Gorman,  79  Kan.  643 9 


PACE 

Stoddard  v.  Ham,  129  Mass.  383 161 

Summerse  v.  Hibbard,  Spencer,  Bartlett  &  Co.,  153  111.  102..  235 

Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  Howard  (U.  S.)  390. . .  43 

Theis  v.  Weiss,  166  Pa.  9 287 

Thomas  v.  Greenwood,  69  Mich.  215 7 

Iucke  v.  Buchholz,  43  Iowa  415 189 

Tupper  v.  Cadwell,  53  Mass.  559 126 

Varnum  &  Aspinwall  v.  Thruston,  17  Md.  470 241 

Vogel  v.   Pekoe,   157   111.   339 112 

Weaver  v.  Griffith,  210  Pa.   13 249 

Wells  v.  Caywood,  3  Col.  487 152 

Westervelt  v.  Fuller  Mfg.  Co.,  13  Daly  (N.  Y.)   352 124 

White  v.  Bluett,  23  L.  J.  R.  Exch.  N.  S.  36 80 

Windmuller  v.  Pope,   107  N.  Y.  674 279 

Winefield  v.   Feder,    169   111.   App.   480 121 

Wolcott,  Johnson  &  Co.  v.  Mount,  38  N.  J.  L  496 172 

Wolf  v.  Marsh,  54  Cal.  228 278 

Wright  v.  Waller,   127  Ala.  557 148 


PART  I 

FORMATION  OF  CONTRACTS 


Chapter  I 
OFFER  AND  ACCEPTANCE 


Express  and  implied  contracts 

HERTZOG  v.  HERTZOG, 

29  Pa.  465  (1857). 

Appeal  from  judgment  for  plaintiff. 

This  suit  was  brought  by  John  Hertzog  to  recover  from 
the  estate  of  his  father  compensation  for  services  rendered 
the  latter  in  his  lifetime,  and  for  money  lent.  The  plaintiff 
was  21  years  of  age  about  the  year  1825,  but  continued  to 
reside  with  his  father,  and  to  work  for  him  on  the  farm  until 
1842.  He  then  left  his  father,  who  put  him  on  another 
farm  which  the  father  owned.  Some  time  afterwards  the 
father  and  his  wife  moved  into  the  same  house  with  John 
and  continued  to  reside  there  until  the  death  of  the  father 
in  1849. 

The  following  testimony  was  relied  upon  to  prove  a  con- 
tract or  agreement  on  the  part  of  the  father,  George  Hert- 
zog, to  pay  for  the  services  of  the  plaintiff.  Adam  Stamm 
affirmed,  "John  labored  for  his  father;  all  worked  together. 
The  old  man  got  the  proceeds.  I  know  the  money  from 
the  grain  went  to  pay  for  the  farm — the  old  man  said  so. 
John's  services  worth  $12  per  month;  the  wife's  worth  $1 
per  week,  besides  attending  to  her  own  family.  I  heard  the 
old  man  say  he  would  pay  John  for  the  labor  he  had  done." 

Daniel  Roderick,  sworn :  "John  Hertzog  requested  him 
to  see  his  father  about  paying  him  for  his  work,  which  he 


had  done  and  was  doing,  and  stated,  that  he  had  frequently 
spoken  to  the  old  man,  his  father,  about  it,  and  he  had  still 
put  him  off;  he  agreed  to  see  him,  and  thinks  it  was  in  June, 
1849.  Coming  from  Duncan's  Furnace  I  spoke  to  the  old 
man  about  paying  John  for  his  work.  He  said  he  intended 
to  make  John  safe.  John  spoke  to  me  in  the  spring,  1848; 
the  old  man  died  in  August,  1849,  I  think." 

The  question  involved  in  this  case  was  whether  the 
above  testimony  is  sufficient  to  prove  an  agreement  on  the 
part  of  the  father  to  pay  for  the  services  of  the  son. 

Lowrie,  J. :  "Express  contracts  are  where  the  terms  of 
the  agreement  are  openly  uttered  and  avowed  at  the  time  of 
the  making:  as,  to  deliver  an  ox  or  10  loads  of  timber,  or 
to  pay  a  stated  price  for  certain  goods.  Implied  are  such  as 
reason  and  justice  dictate ;  and  which  therefore  the  law  pre- 
sumes that  every  man  undertakes  to  perform.  As  if  I  em- 
ploy a  person  to  do  any  business  for  me  or  perform  any 
work,  the  law  implies  that  I  undertook  and  contracted  to 
pay  him  as  much  as  his  labor  deserves.  If  I  take  up  wares 
of  a  tradesman  without  any  agreement  of  price  the  law  con- 
cludes that  I  contracted  to  pay  their  real  value." 

This  is  the  language  of  Blackstone  (2  Comm.  443),  and 
it  is  open  to  some  criticism.  There  is  some  looseness  of 
thought  in  supposing  that  reason  and  justice  ever  dictate  any 
contracts  between  parties,  or  impose  such  upon  them.  All 
true  contracts  grow  out  of  the  intentions  of  the  parties  to 
transactions,  and  are  dictated  only  by  their  mutual  and  ac- 
cordant wills.  When  this  intention  is  expressed,  we  call  the 
contract  an  express  one.  When  it  is  not  expressed,  it  may 
be  inferred,  implied,  or  presumed,  from  circumstances  as 
really  existing,  and  then  the  contract,  thus  ascertained,  is 
called  an  implied  one.  The  instances  given  by  Blackstone 
are  an  illustration  of  this. 

We  have  in  law  three  classes  of  relation,  called  con- 
tracts. 

1.  Constructive  contracts,  which  are  fictions  of  law 
adapted  to  enforce  legal  duties  by  actions  of  contract,  where 
no  proper  contract  exists,  express  or  implied. 


2.  Implied  contracts,  which  arise  under  circumstances 
which,  according  to  the  ordinary  course  of  dealing  and  the 
common  understanding  of  men,  show  a  mutual  intention  to 
contract. 

3.  Express  contracts. 

In  the  present  case  there  is  no  pretense  of  a  constructive 
contract,  but  only  of  a  proper  one,  either  express  or  implied. 

The  law  ordinarily  presumes  or  implies  a  contract  when- 
ever this  is  necessary  to  account  for  other  relations  found  to 
have  existed  between  the  parties. 

Thus  if  a  man  is  found  to  have  done  work  for  another, 
and  there  appears  no  known  relation  between  them  that  ac- 
counts for  such  service,  the  law  presumes  a  contract  of 
hiring.  But  if  a  man's  house  takes  fire,  the  law  does  not 
presume  or  imply  a  contract  to  pay  his  neighbors  for  their 
services  in  saving  his  property.  The  common  principles  of 
human  conduct  mark  self-interest  as  the  motive  of  action  in 
the  one  case,  and  kindness  in  the  other ;  and,  therefore,  by 
common  custom,  compensation  is  mutually  counted  on  in  one 
case,  and  in  the  other  not.  If  we  find,  as  ascertained  circum- 
stances, that  a  stranger  has  been  in  the  employment  of 
another,  we  immediately  infer  a  contract  of  hiring,  because 
the  principles  of  individuality  and  self-interest,  common  to 
human  nature,  and  therefore  the  customs  of  society,  require 
this  inference. 

But  if  we  find  a  son  in  the  employment  of  his  father,  we 
do  not  infer  a  contract  of  hiring,  because  the  principle  of 
family  affection  is  sufficient  to  account  for  the  family  asso- 
ciation, and  does  not  demand  the  inference  of  a  contract. 
And  besides  this,  the  position  of  a  son  in  a  family  is  always 
esteemed  better  than  that  of  a  hired  servant,  and  it  is  very 
rare  for  sons  remaining  in  their  father's  family,  even  after 
they  arrive  at  age,  to  become  mere  hired  servants.  If  they 
do  not  go  to  work  or  business  on  their  own  account,  it  is 
generally  because  they  perceive  no  sufficient  inducement  to 
sever  the  family  bond,  and  very  often  because  they  lack  the 
energy  and  independence  necessary  for  such  a  course ;  and 


very  seldom  because  their  father  desires  to  use  them  as 
hired  servants. 

We  concede  that  in  a  case  of  this  kind  an  express  con- 
tract may  be  proved  by  indirect  or  circumstantial  evidence. 
If  the  parties  kept  accounts  between  them  these  might  show 
it,  or  it  might  be  sufficient  to  show  that  money  was  periodi- 
cally paid  to  the  son  as  wages ;  or,  if  there  be  no  creditors 
to  object,  that  a  settlement  for  wages  was  had,  and  a  balance 
agreed  upon.  But  there  is  nothing  of  the  sort  here.  These 
witnesses  (Stamm  and  Roderick)  add  nothing  to  the  facts 
already  recited,  except  that  the  father  told  them  shortly 
before  his  death,  that  he  intended  to  pay  his  son  for  his 
work.  This  is  no  making  of  a  contract  or  admission  of  one ; 
but  rather  the  contrary.  It  admits  that  the  son  deserved 
some  reward  from  his  father,  but  not  that  he  had  a  contract 
for  any. 

The  difficulty  in  trying  causes  of  this  kind  often  arises 
from  juries  supposing  that,  because  they  have  the  decision 
of  the  cause,  therefore  they  may  decide  according  to  general 
principles  of  honesty  and  fairness,  without  reference  to  the 
law  of  the  case.  Their  verdict  may,  in  fact,  declare  what  is 
honest  between  the  parties,  and  yet  it  may  be  a  mere  usurpa- 
tion of  power,  and  thus  be  an  effort  to  correct  one  evil  by  a 
greater  one.  Citizens  have  a  right  to  form  connections  on 
their  own  terms  and  to  be  judged  accordingly.  When  par- 
ties claim  by  contract,  the  contract  proved  must  be  the  rule 
by  which  their  rights  are  to  be  decided.  To  judge  them  by 
any  other  rule  is  to  interfere  with  the  liberty  of  the  citizen. 

Judgment  reversed  and  new  trial  awarded  in  accord- 
ance with  this  opinion. 


Necessity  for  offer  and  acceptance 

COLUMBUS,  ETC.,  RAILWAY  CO.  v.  GAFFNEY, 

65  Ohio  104  (1901). 

Appeal  from  judgment  for  plaintiff  (Gaffney). 

The  plaintiff  had  a  contract  with  the  Government  by 
which,  for  a  compensation,  he  was  bound  to  carry  the  mails 
between  the  post  office  at  Lancaster,  Ohio,  and  the  depot  of 
the  Columbus,  etc.,  Railway  Co.,  and  the  depot  of  the  Cin- 
cinnati, etc.,  Railway  Co.  at  that  place.  These  two  roads  at 
this  point  form  a  junction,  the  roads  running  on  opposite 
sides  of  the  common  depot  within  40  feet  of  each  other. 
Each  of  these  roads  had  a  contract  with  the  Government  for 
carrying  mails  over  its  roads  by  which  each  was  required  to 
transfer  the  mails  over  its  road  to  that  of  the  other  when 
required  in  the  course  of  transit.  During  the  entire  period 
for  which  compensation  was  claimed  the  work  of  transfer- 
ring from  one  road  to  the  other  was  performed  by  the 
plaintiff  or  his  assignor.  The  plaintiff  during  this  time 
supposed  that  it  was  his  duty  under  his  contract  with  the 
Government  in  regard  to  carrying  the  mails  between  the 
depots  and  the  post  office  to  make  this  transfer  between  the 
two  roads,  and  performed  the  service  under  this  impression 
until  he  was  informed  by  an  agent  of  the  Government  that 
it  was  not  his  duty  and  was  ordered  to  desist  from  so  doing. 
No  demand  for  compensation  was  made  until  he  had  re- 
ceived this  order  from  the  Government  agent,  and  he  at  no 
time  prior  thereto  supposed  that  he  was  entitled  to  any 
compensation;  nor  was  there  any  expressed  request  on  the 
part  of  the  company  or  its  agents  that  he  should  perform 
this  service,  the  company  having  agents  of  its  own  at  the 
depot  who  should  have  performed  the  service. 

On  this  state  of  facts  it  is  claimed  that  a  contract  should 
be  implied  on  the  part  of  the  defendant  to  pay  the  plaintiff 
what  his  services  were  reasonably  worth  in  so  transferring 
the  mails  for  the  defendant  at  the  depot. 


Minshall,  C.  J. :  It  seems  clear  that  no  contract  can 
be  inferred  from  the  facts  in  this  case,  for  it  does  not  appear 
from  anything  in  the  case  that  the  plaintiff  performed  the 
services  for  which  he  sues  under  a  contract  with  the  defend- 
ant whereby  it  was  agreed  between  them  that  he  should  be 
compensated  for  his  services  by  the  defendant  in  any  sum. 
There  could  have  been  no  meeting  of  the  minds  on  any  of 
its  terms,  and  without  it  no  contract  can  exist  whether  ex- 
press or  implied.  During  all  this  time,  some  six  years,  in 
which  he  was  engaged  in  doing  the  work,  the  plaintiff  sup- 
posed that  it  was  his  duty  to  do  it  under  his  contract  with 
the  Government.  He  did  not  therefore  during  the  time  re- 
gard himself  as  performing  any  services  for  the  defendant 
and  made  no  claim  against  it  for  compensation  until  after  he 
had  been  informed  that  it  was  not  his  duty  to  do  what  he  had 
been  voluntarily  doing.  This  fact  negatives  the  existence 
of  any  contract  express  or  implied  having  existed  between 
the  parties  during  the  time  the  services  were  being  per- 
formed. The  minds  of  the  parties  could  not  have  met  on  the 
subject  of  compensation  when  the  party  doing  the  work  had 
no  idea  that  he  was  to  be  compensated  by  the  defendant  at 
the  time  the  work  was  done.  Under  such  circumstances  the 
understanding  of  the  party  for  whom  the  work  was  done 
becomes  immaterial  unless  it  had  been  so  communicated  to 
the  other  party  as  to  have  induced  the  performance  of  the 
services,  which  was  not  the  case,  if  it  had  any  such  under- 
standing, but  there  is  nothing  in  the  case  to  show  any  such 
understanding  on  the  part  of  the  Company.  It  is  true  that 
under  its  (railroad)  contract  with  the  Government  it  appears 
that  the  transfer  of  mails  from  its  road  to  the  other  was  one 
of  its  obligations,  and  the  plaintiff  in  attending  to  the  matter 
performed  a  service  that  it  through  its  agents  should  have 
performed,  but  no  request  of  the  Company  is  here  shown  by 
implication ;  since  the  Company  had  agents  of  its  own  at  the 
depot  and  the  plaintiff  in  doing  what  he  did  performed  serv- 
ices that  should  have  been  attended  to  by  the  employees  of 
the  Company.    And  had  any  claim  been  made  by  the  plaintiff 


for  compensation,  or  had  the  circumstances  indicated  that  he 
would  make  such  a  claim,  doubtless  the  Company  would  have 
directed  its  own  agents  to  attend  to  the  business.  This  shows 
that  there  was  nothing  in  the  conduct  of  the  plaintiff  that 
indicated  a  purpose  on  his  part  to  make  a  claim  for  com- 
pensation at  the  time  the  work  was  performed,  and  that  the 
Company  did  not  regard  itself  as  receiving  services  from  him 
for  which  it  was  to  make  compensation.  In  no  view  of  the 
case  then  can  the  suit  of  the  plaintiff  be  maintained  against 
the  Company  on  the  ground  of  an  implied  contract  to  pay 
what  the  services  were  reasonably  worth. 

Judgment  reversed;  judgment  for  defendant. 


Common  intention  necessary 

THOMAS  v.  GREENWOOD    ET  AL., 

69  Mich.  215  (1888). 

Appeal  from  judgment  for  defendants. 
In  reply  to  a  general  letter  of  inquiry  from  the  plaintiff 
the  defendants  wrote  as  follows : 

"Duluth,  Minn.,  Feb.  11,  1886. 
"Mr.  H.  H.  Thomas, 
"9  Munger  Block, 

"Bay  City,  Mich. 
"Dear  Sir: — We  are  just  in  receipt  of  yours  of  the  9th  instant 
in  reference  to  Hercules  Powder.  Replying,  would  say  that  we  have 
the  following  in  stock:  600  lbs.  No.  2*4  inch;  2800  lbs.  No.  2,  V/4 
inch;  2600  lbs.  No.  2  S.  V/2  inch;  1150  lbs.  No.  2  S.  S.  1%  inch;  1550 
lbs.  No.  1  X.  X.  1%  inch.  Of  this  we  would  like  to  reserve  about 
1500  lbs.  Our  Mr.  Munday,  who  was  talking  with  you,  is  not  at  home, 
and  is  bumming  around  the  country  in  the  cant-hook  business.  We 
quote  this  powder  to  you  at  10  cents  per  pound  f.  o.  b.  here,  we  to 
reserve  about  amount  stated.  We  also  quote  4  x  caps  (see  enclosed 
circular),  which  we  are  told  are  the  best  caps  made,  at  $5.90  per 
thousand.  Fuse,  Lake  Superior  Mining,  single  and  double  tape,  at 
20  per  cent,  off  Toy  &  Bickford  Company's  or  Aetna  Powder  Com- 
pany's list.  Terms,  cash  or  approved  notes.  Should  you  decide  to 
order  these  goods  you  may  give  us  endorsed  note  that  we  can  use 
the  same  as  cash,  dated  March  1st,  four  months,  without  interest. 
"Hoping  to  receive  your  order,  we  remain, 
"Yours  trulv, 

"G.  C  GREENWOOD  &  CO." 


8 

Upon  receipt  of  the  above  communication  plaintiff 
wrote  Greenwood  &  Co.  as  follows : 

"Bay  City,  Mich.,  February  15,  1886. 
"Messrs.  G.  C.  Greenwood  &  Co., 
"Duluth,   Minn. 
"Gentlemen : — Your    letter    or    statement    showing    amount    of 
Hercules  Powder  to  hand,  showing  8700  lbs.     I  will  take  7200  lbs. 
of  same,  leaving  you  the   1500  lbs.  in  reserve,  as  you  wished;   so 
please  ship   promptly  by    freight. 

1900  lbs.  No.  2  S.  \%   inch   Hercules 

2600  lbs.  No.  2  S.  V/2   inch  Hercules 

1150  lbs.  No.  2  S.  S.  1%    inch    Hercules 

1550  lbs.  No.  1  X.  X.     1%  inch  Hercules 
$720.00 

"Please  ship  above  goods  at  once,  and  on  receipt  of  invoice 
will  forward  endorsed  note  due  four  months  from  March  1,  188'j. 
I  do  not  understand  what  grade  No.  4  x  is.  I  use  Tupper  force 
caps  of  same  brand  in  my  trade  here.  You  are  too  high  on  caps 
and  fuse. 

"Respectfully, 

"H.  H.  THOMAS." 

The  defendant  did  not  ship  the  goods  as  requested,  and 
the  plaintiff  brings  this  action  to  recover  his  damages  based 
upon  the  alleged  contract. 

Counsel  for  the  defendants  insist  that  the  minds  of  the 
parties  never  met  because : 

First. — The  offer  is  indefinite  and  left  two  matters  open  for 
further  consideration,  namely,  the  grade  and  quantity  of  each  grade 
of  the  1500  pounds  of  powder  to  be  reserved  by  Greenwood  &  Co. ; 
also  the  sufficiency  of  the  note  to  be  accepted  in  payment  of  the 
goods. 

We  think  the  position  of  the  counsel  for  defendants  is 
correct.  The  right  to  select  powder  reserved  is  clearly  im- 
plied in  the  reservation.  It  applied  to  one  grade  no  more 
than  to  another,  and  the  fact  the  price  at  which  the  whole 
quantity  was  offered  being  a  uniform  price  of  10  cents  a 
pound,  made  no  difference  with  the  exercise  of  this  right. 

They  did  not  agree  to  take  any  endorsed  note  plaintiff 
might  send.  Quality  was  essential.  It  was  to  be  such  a  note 
as  they  could  use  the  same  as  cash.  Who  was  to  pass  upon 
this  qualification?  Not  the  one  who  gave  the  note,  but  they 
who  received  it.     But  the  plaintiff  annexed  a  new  condition. 


It  was  this :  "On  receipt  of  invoice  will  forward  endorsed 
note." 

Second. — The  offer  is  for  the  sale  of  powder  and  of  the  caps 
and  fuse.  The  offer  is,  "Should  you  decide  to  order  these  goods." 
The  acceptance  is  of  the  powder  only. 

We  think  this  point  is  well  taken.  Caps  and  fuse 
cannot  be  used  without  powder.  Would  it  be  likely  that 
defendants  would  offer  to  sell  nearly  all  of  their  powder 
without  trying  to  sell  also  the  caps  and  fuse?  They  made 
their  price  on  each  class  of  goods  offered,  and  then  said, 
"Should  you  decide  to  order  these  goods."  Had  plaintiff 
considered  the  price  for  the  powder  high,  and  the  caps  or 
fuse  low,  we  do  not  think  he  could  accept  or  order  the  caps 
or  fuse  alone  without  the  further  assent  thereto  of  defend- 
ants. Offers  of  this  kind  become  binding  only  when  the 
proposition  is  met  with  an  acceptance  which  corresponds 
with  it  entirely  and  adequately,  without  qualification  or  the 
addition  of  new  matter.  1  Pars.  Cont.  (7th  Ed.)  We  do 
not  think  this  has  been  done  in  this  case. 

The  judgment  is  affirmed. 


Agreement  to  contract  in  future — What  constitutes 
a  final  agreement 

ST.  LOUIS  R.  R.  v  GORMAN,  \S 

79  Kan.  643  (1909). 

Action  by  Thomas  Gorman  against  the  St.  Louis  &  San 
Francisco  Railroad  Company.  Judgment  for  plaintiff,  and 
defendant  brings  error. 

Burch,  J. :  The  defendant  is  a  common  carrier,  opera- 
ting a  line  of  railroad  running  northward  through  Godfrey, 
Ft.  Scott,  and  Fulton  to  Kansas  City,  Mo.  The  plaintiff 
is  a  stockman  who  resides  at  Fulton,  north  of  Ft.  Scott, 
and  who  keeps  cattle  at  Godfrey,  south  of  Ft.  Scott.     The 


10 

defendant  has  no  office  or  agent  at  Godfrey.     Desiring  to 
ship  several  car  loads  of  cattle  from  Godfrey  to  Kansas 
City,  the  plaintiff  made  a  verbal  arrangement  to  do  so  with 
the  defendant's  agent  at   Fulton.     The   arrangement  was 
that  cars  would  be  placed  at  Godfrey,  which  the  plaintiff 
would  load  in  time  to  be  taken  by  a  certain  train,  the  plain- 
tiff   would    go  with  the    cattle  to  Ft.  Scott,  the  defendant 
would  have  a  shipping  contract  prepared  and  ready   for 
signature  when  the  train  arrived  there,  and  the  plaintiff 
and  his  cattle  would  go  through  to  Kansas  City  on  the  train 
taking  them  from  Godfrey.     The     plaintiff    had  been  a 
regular  shipper  of  cattle  for  years,  knew  it  was  the  custom 
to  require  shippers  to  sign  written  contracts,  and  had  always 
signed  written  contracts,  but  he  had  never  scrutinized,  and 
was  not  familiar  with,  their  provisions.     He  did  not  dis- 
cuss rates  or  terms  with  the  agent  at  Fulton  or  the  conditions 
of  the  contract  which  would  be  in  waiting  for  him.    He  did 
not  know  what  the  terms  would  be,  but  he  expected  to  be 
presented  with,  and  intended  to  sign,  just  such  a  written 
contract  as  he  had  been  in  the  habit  of  shipping  under,  when 
he  reached  Ft.  Scott.     The  cattle  were  loaded  and  trans- 
ported to  Ft.  Scott  as    contemplated.      At    Ft.    Scott    the 
defendant  had  no  contract  in  readiness  for  signature,  no 
agent  at  the  station,  and,  after  diligent  effort,  the  plaintiff 
could  find  nobody  with  authority  to  bill  his  cattle.     The 
train  conductor  could  not  take  the  cattle  without  proper 
papers,  and  the  cars  containing  them  were  cut  out  of  the 
train  over  the  plaintiff's  objection  and  protest,  were  placed 
on  a  side  track,  and  the  train  proceeded  to  Kansas  City 
without  them.    The  day  was  hot  and  sultry,  and  for  several 
hours  the  cattle  were  switched  and  bumped  about  the  yards, 
frequently  with  much  violence,  or  were  left  standing  be- 
tween lines  of  other  cars  so  that  they  suffered  greatly  from 
heat,  with  the  result  that  they  were  seriously  injured.     The 
plaintiff  followed  them  about,  getting  up  those  which  were 
knocked  down,  and  otherwise  doing  what  he  could  to  pro- 
tect them.     The  plaintiff  finally  found  an  agent  who  made 


11 

out  a  contract,  and  presented  it  for  signature.  The  plaintiff 
was  not  apprised  of  its  terms,  was  offered  no  choice  of 
rates,  and  was  given  no  option  as  to  conditions  of  liability 
on  the  part  of  the  defendant.  He  might  have  read  the 
instrument,  but  did  not.  He  recognized  it  as  a  railroad 
live  stock  contract  like  the  kind  he  had  been  using,  but  he 
was  not  familiar  with  what  it  contained.  He  told  the  agent 
the  condition  the  cattle  were  then  in,  and  refused  to  sign. 
The  agent  refused  to  allow  the  cattle  to  be  shipped  unless 
the  plaintiff  signed  the  paper  tenderd.  Having  no  alterna- 
tive, the  plaintiff  affixed  his  signature  so  that  he  could  get 
his  cattle  to  market.  A  few  hours  afterward  the  cattle 
were  placed  in  a  train  which  took  them  to  Kansas  City. 
When  placed  on  the  market,  one  animal  could  not  be  sold, 
and  five  others  were  weighed  back  after  sale  because  of 
broken  ribs  and  bruises.  The  contract  which  the  plaintiff 
signed  required  him  to  attend  and  unload  his  cattle  at  his 
own  risk  and  expense.  It  contained  provisions  with  which 
he  did  not  comply,  which  were  conditions  precedent  to  the 
recovery  of  damages  for  the  injuries  sustained.  It  also 
provided  for  his  transportation.  He  went  to  Kansas  City 
on  the  train  with  the  cattle,  and  at  Kansas  City  surrendered 
the  contract  to  the  defendant  and  received  a  pass  to  his 
home,  which  he  used.  The  plaintiff  sued  the  defendant  for 
damages,  counting  upon  the  common-law  liability  which 
attached  to  the  delivery  of  the  cattle  to  the  defendant  under 
the  verbal  arrangement  with  the  agent  at  Fulton.  The 
defendant  answered,  setting  up  the  written  contract  and 
pleading  noncompliance  with  its  conditions.  The  plaintiff 
replied  that  the  writing  was  signed  under  duress.  The  case 
was  submitted  on  testimony  showing  the  foregoing  among 
other  facts.  The  court  instructed  the  jury  respecting  the 
common-law  liability  of  the  defendant  in  the  absence  of 
special  contract  and  respecting  its  limited  liability  under  the 
written  contract,  and  submitted  to  the  jury  the  question 
whether  the  written  contract  was  signed  with  such  freedom 
from  constraint  that  it  governed  the  rights  of  the  parties. 


12 

The  defendant  excepted,  but  made  no  request  for  other 
instructions.  The  jury  found  for  the  plaintiff,  and  the 
defendant  prosecutes  error. 

The  defendant  argues  that,  when  the  written  contract 
was  signed,  it  superseded  all  oral  negotiations,  and  fixed 
the  rights  of  the  parties.  It  is  said  that,  when  the  plaintiff 
signed  the  contract,  he  did  only  what  he  intended  to  do 
from  the  beginning,  and  what  he  agreed  to  do  at  the  begin- 
ning, and  hence  that  the  coercion  of  the  agent  at  Ft.  Scott 
can  be  given  no  legal  effect.  It  is  not  necessary  to  cite 
authorities  upon  the  proposition  that  if  the  plaintiff  freely 
and  voluntarily  signed  the  contract — assuming  it  to  be  one 
which  the  law  will  permit — it  measures  the  rights  of  the 
parties.  The  oral  arrangement  would  be  at  an  end,  and  the 
plaintiff  would  be  in  no  position  to  avoid  the  force  of  the 
limitations  placed  upon  the  carrier's  liability  by  the  writing. 
It  may  be  assumed  that,  if  the  plaintiff  legally  bound  himself 
at  Fulton  to  execute  the  precise  contract  which  was  pre- 
sented to  him  at  Ft.  Scott,  the  claimed  coercion  was  without 
legal  influence.  But,  if  the  plaintiff  rested  under  no  legal 
obligation  to  sign  that  contract,  he  could  abandon  his 
original  intention  and  refuse  to  do  so;  and,  if  the  original 
intention  to  sign  was  rightfully  abandoned,  any  subsequent 
assent  to  the  terms  of  the  contract  would  have  to  be  ob- 
tained without  coercion  or  it  would  not  bind.  In  calling 
upon  this  court  to  declare  that  the  plaintiff  irrevocably 
bound  himself  to  sign  the  very  instrument  he  did  sign,  the 
defendant  raises  a  question  of  fact  which  he  should  have 
asked  to  have  submitted  to  the  jury  under  proper  instruc- 
tions. There  is  no  evidence  that  the  defendant  had  a  stand- 
ard form  of  contract  which  it  invariably  used,  and  which 
therefore  was  in  the  plaintiff's  mind.  The  contract  upon 
which  the  defendant  relies  has  the  following  heading:  "St. 
Louis  and  San  Francisco  Railroad  Company.  Read  this 
contract  carefully,  as  numerous  changes  have  been  made." 
How  long  this  form  had  been  in  use  does  not  appear,  and 
it  cannot  be  said  the  plaintiff  had  any  of  its  provisions  in 


13 

mind.  True,  the  plaintiff  recognized  the  contract  as  a  rail- 
road live  stock  contract  like  the  ones  he  had  been  using, 
and  such  as  he  expected  to  sign,  but,  taking  all  of  his 
evidence  into  consideration,  a  jury  would  have  the  right  to 
find  that  his  identification  extended  no  further  than  to  the 
genus.  A  man  may  recognize  a  trust  deed  or  coupon  bond 
as  such  and  know  nothing  of  its  contents,  and  he  may  agree 
to  execute  such  a  bond  and  to  secure  it  by  such  a  deed 
without  agreeing  upon  any  single  condition  to  be  inserted 
in  either.  All  the  plaintiff  said  must  be  weighed  to  ascertain 
its  true  purport.  Statement  qualifies  statement,  and  recon- 
ciliation is  a  jury  function. 

Except  that  the  plaintiff  identified  this  contract  as  like 
those  he  had  previously  used,  which  to  the  jury  might  have 
meant  nothing,  there  is  no  evidence  of  usual  stipulations  or 
customary  conditions  with  which  the  plaintiff  should  have 
been  familiar  from  his  previous  experience  and  which 
should  have  been  in  mind ;  and,  except  as  indicated,  there  is 
no  evidence  that  this  contract  was  of  a  regular,  usual,  or 
customary  kind.  The  court  is  not  inclined  to  declare  as  a 
matter  of  law  that  a  shipper  who  delivers  stock  to  a  carrier 
for  transportation  with  the  understanding  that  a  written 
contract  will  be  signed  intends  or  binds  himself  to  submit 
to  every  condition  the  carrier  may  see  fit  to  impose.  Under 
these  circumstances,  the  jury  would  have  been  justified  in 
finding  that  the  plaintiff  simply  agreed  to  agree  upon  a  con- 
tract when  he  reached  Ft.  Scott;  and  it  is  elementary  law 
that,  unless  an  agreement  to  make  a  future  contract  be  defi- 
nite and  certain  upon  all  the  subjects  to  be  embraced,  it  is 
nugatory.  "A  contract  between  two  persons,  upon  a  valid 
consideration,  that  they  will  at  some  specified  time  in  the 
future,  at  the  election  of  one  of  them,  enter  into  a  particular 
contract,  specifying  its  terms,  is  undoubtedly  binding,  and, 
upon  a  breach  thereof,  the  party  having  the  election  or 
option  may  recover  as  damages  what  such  particular  con- 
tract to  be  entered  into  would  have  been  worth  to  him,  if 
made.    But  an  agreement  that  they  will  in  the  future  make 


14 

such  contract  as  they  may  then  agree  upon  amounts  to 
nothing.  An  agreement  to  enter  into  negotiations,  and  agree 
upon  the  terms  of  a  contract,  if  they  can,  cannot  be  made 
the  basis  of  a  cause  of  action.  There  would  be  no  way  by 
which  the  court  could  determine  what  sort  of  a  contract 
the  negotiations  would  result  in,  no  rule  by  which  the  court 
could  ascertain  whether  any,  or,  if  so,  what,  damages  might 
follow  a  refusal  to  enter  into  such  future  contract.  So,  to 
be  enforceable,  a  contract  to  enter  into  a  future  contract 
must  specify  all  its  material  and  essential  terms,  and  leave 
none  to  be  agreed  upon  as  the  result  of  future  negotiations. 
*  *  *  Where  a  final  contract  fails  to  express  some 
matter,  as,  for  instance,  a  time  of  payment,  the  law  may 
imply  the  intention  of  the  parties,  but,  where  a  preliminary 
contract  leaves  certain  terms  to  be  agreed  upon  for  the 
purpose  of  a  final  contract,  there  can  be  no  implication  of 
what  the  parties  will  agree  upon."  Shepard  v.  Carpenter, 
54  Minn.  153,  55  N.  W.  906.  Such  being  the  law  and  the 
state  of  the  case,  it  cannot  be  said  that  the  plaintiff  rested 
under  a  legal  duty  to  sign  the  writing  in  controversy.  He 
was  free  to  refuse  to  commit  himself  to  any  specific  agree- 
ment. Ke  did  refuse,  and  the  Fulton  arrangement  was  then 
at  an  end  so  far  as  the  execution  of  a  shipping  contract  was 
concerned.  The  law  required  the  defendant  to  accept  the 
plaintiff's  stock  for  transportation  without  obliging  him  to 
agree  to  sign  a  special  contract,  and  without  coercing  him 
into  signing  a  special  contract.  A  special  contract  limiting 
the  carrier's  common-law  liability  must  be  freely  and  fairly 
made,  or  the  shipper  may  repudiate  it,  and  a  refusal  to 
transport  stock  unless  the  shipper  signs  a  special  contract 
destroys  freedom  of  consent.  *  *  * 
Judgment  affirmed. 


15 

Offer  must  be  definite    ^ 
SHERMAN  v,  KITSMILLER,  ADM., 

17  S.  &  R.  (Penna.)  45  (1827). 

Appeal  from  judgment  for  defendant. 

George  Sherman,  deceased,  promised  Mrs.  Sherman, 
plaintiff,  his  niece,  that  he  would  give  her  100  acres  of  land 
if  she  would  live  with  him  and  keep  house  for  him  until  her 
marriage.  Relying  upon  this  promise,  the  plaintiff  had  kept 
house  for  him  until  the  time  of  her  marriage.  The  defend- 
ant requested  the  court  among  other  things  to  charge  the 
jury  that  the  promise  proved  was  too  indefinite  to  exist. 
It  was  100  acres  of  land,  without  describing  where  it  lay 
or  of  what  value  it  should  be,  how  it  was  to  be  laid  off  or 
by  whom. 

Duncan,  J. :  The  error  assigned  is,  that  part  of  a  long 
charge  in  which  the  court  said,  "There  can  be  no  recovery, 
unless  there  was  a  legal  promise,  seriously  made ;  if  a 
promise  is  so  vague  in  its  terms  as  to  be  incapable  of  being 
understood,  and  of  being  carried  into  effect,  it  cannot  be 
enforced.  If  George  Sherman  had  reference  to  no  particu- 
lar lands,  if  he  did  not  excite  or  intend  to  excite  a  hope  or 
expectation  in  Elizabeth  Koons,  that  after  her  marriage  with 
George  S.  Sherman  she  should  get  any  land,  such  promise 
would  not  be  so  perfect  as  to  furnish  the  ground  of  an 
action  for  damages.  But  if  George  Sherman  was  seized  of 
several  tracts  in  the  vicinity,  and  he  promised  her  one  hun- 
dred acres,  in  such  a  manner  as  to  excite  an  expectation  in 
her  that  it  was  a  particular  part  of  his  lands  so  held  by  him, 
though  not  particularly  describing  or  specifying  its  value,  or 
by  whom;  and  if,  in  pursuance  of  such  promise,  she  did 
marry  George  Sherman,  then  the  action  might  be  sustained." 

Now  let  us  put  the  c^se  of  the  plaintiffs  in  the  most 
favorable  light,  without  regarding  the  form  of  the  declara- 
tion, and  admit  that  the  proof  met  the  allegation,  the  special 
promise  of  the  one  hundred  acres  of  land,  the  consideration 
of  the  promise,  marriage,  and  its  execution,  and  living  with 


16 

the  defendant's  intestate  until  the  marriage,  the  charge  of 
the  court  was,  in  the  particular  complained  of,  more  favor- 
able to  the  plaintiffs  than  their  case  warranted.  It  should 
have  been,  on  the  question  put  to  the  court,  that  the  promise 
could  not  support  the  action ;  that  the  defendant's  intestate 
did  not  assume  to  convey  any  certain  things,  to  convey  any 
certain  or  particular  land,  or  that  could,  with  reference  to 
anything  said  by  him,  refer  to  anything  certain.  Whereas 
the  court  submitted  to  the  jury  whether  it  did  refer  to  any- 
thing certain,  viz.,  lands  of  the  intestate  in  the  vicinity;  and 
that  without  one  spark  of  evidence  to  authorize  the  jury  to 
make  such  an  inference  or  draw  such  conclusion.  *  *  * 
Express  promises  or  contracts  ought  to  be  certain  and  ex- 
plicit, to  a  common  intent  at  least.  *  *  *  Now  here,  the 
court  instructed  the  jury,  that  if  they  could  find  this  promise 
to  refer  to  anything  certain,  any  land  in  particular,  the 
action  could  be  maintained.  This  was  leaving  it  to  the  jury 
more  favorably  for  the  plaintiffs  than  ought  to  have  been 
done ;  for  the  jury  should  have  been  instructed,  that  as  there 
was  nothing  certain  in  the  promise,  nothing  referred  to,  to 
render  it  certain,  the  action  could  not  be  maintained.  The 
contract  was  an  express  one — nothing  could  be  raised  by 
implication — no  other  contract  could  be  implied.  *  *  * 
There  would  in  the  present  case  be  no  specific  perform- 
ance decreed  in  a  court  of  chancery;  the  promisor  himself 
-would  not  know  what  to  convey,  nor  the  promisee  what  to 
demand.  If  it  had  been  a  promise  to  give  him  100  pieces 
of  silver,  this  would  be  too  vague  to  support  an  action ;  for 
what  pieces? — fifty-cent  pieces  or  dollars? — what  denomina- 
tion? One  hundred  cows  or  sheep  would  be  sufficiently 
certain,  because  the  intention  would  be,  that  they  should  be 
at  least  of  a  middling  quality  ;  but  one  hundred  acres  of  land, 
without  locality,  without  estimation  of  value,  without  rela- 
tion to  anything  which  could  render  it  certain,  does  appear 
to  me  to  be  the  most  vague  of  all  promises ;  and,  if  any 
contract  can  be  void  for  its  uncertainty,  this  must  be.  One 
hundred  acres  on  the  Rocky  Mountain,  or  in  the  Conestoga 


17 

Manor — one  hundred  acres  in  the  mountain  of  Hanover 
County,  Virginia,  or  in  the  Conewango  rich  lands  of  Adams 
County — one  hundred  acres  of  George  Sherman's  mansion 
place  at  eighty  dollars  per  acre,  or  one  hundred  acres  of  his 
barren  lands  at  five  dollars. 

This  vague  and  void  promise,  incapable  of  specific  exe- 
cution, because  it  has  nothing  specific  in  it,  would  not  pre- 
vent the  plaintiffs  from  recovering  in  a  quantum  meruit  for 
the  value  of  this  young  woman's  services  until  her  marriage. 
If  this  promise  had  been  that,  in  consideration  of  one  hun- 
dred pounds,  the  defendant's  testator  promised  to  convey 
her  one  hundred  acres  of  land,  chancery  would  not  decree 
a  specific  performance,  or  decree  a  conveyance  of  any  par- 
ticular land ;  yet  the  party  could  recover  back  the  money  he 
had  paid  in  an  action.  *  *  *  N0  evidence  was  given 
of  the  value  of  the  land.  The  court  stated  the  difficulty  of 
giving  damages  for  not  conveying  lands  of  the  value  of 
which  nothing  appeared.  The  plaintiff's  counsel  admitted 
the  want  of  evidence  of  the  value  of  the  land  was  an  incur- 
able defect.  If  the  defect  of  evidence  of  value  would  be 
incurable,  the  defect  of  all  allegation  or  proof  of  anything 
by  which  the  value  could  be  regulated,  anything  to  afford  a 
clue  to  the  jury  by  which  to  discover  what  was  intended  to 
be  given,  any  measure  of  damages,  would  be  fatal.    *    *    * 

I  am  therefore  of  the  opinion  that  there  was  no  error 
in  the  opinion  of  the  lower  court,  by  which  the  plaintiffs 
have  been  endamaged ;  that  the  law  was  laid  down  more 
favorably  for  them  than  the  evidence  warranted. 

Judgment  affirmed. 


18 

Offer  must  be  definite 

FAIRPLAY  SCHOOL  TOWNSHIP  v.  O'NEAL, 

127  Ind.  95  (1890). 

Appeal  from  judgment  for  plaintiff.    (O'Neal.) 

A  verbal  contract  was  entered  into  March  31,  1888,  by 
a  teacher  with  the  school  trustee  wherein  the  teacher  under- 
took to  teach  the  school  for  the  term  to  be  held  in  the 
school  year  1888,  for  which  the  trustee  promised  to  pay  her 
"good  wages."  The  question  here  involved  was  whether  the 
promise  to  pay  good  wages  was  an  enforceable  promise. 

Elliott,  J. :  It  is  necessary  for  the  information  of  the 
citizens  that  contracts  made  with  teachers  should  be  certain 
and  definite  in  their  terms,  otherwise  the  citizens  cannot 
guard  their  interests  nor  observe  the  conduct  of  their  officer. 
It  is  necessary  that  the  contract  should  be  definite  and 
certain  in  order  that  when  the  time  comes  for  the  teacher 
to  enter  upon  duty  there  may  be  no  misunderstanding  as 
to  what  her  rights  are.  Any  other  ruling  would  put  in  peril 
the  school  interests.  Suppose  for  illustration  that  a  con- 
tract providing  for  "good  wages,"  "reasonable  wages,"  "fair 
wages,"  or  the  like  is  made,  and  when  the  time  comes  for 
opening  the  schools  there  arises  a  dispute  as  to  what  the 
compensation  shall  be,  how  shall  it  be  determined,  and  in 
what  mode  can  the  teacher  be  compelled  to  go  on  with  the 
duty  he  has  agreed  to  perform.  Until  there  is  a  definite 
contract  it  can  hardly  be  said  that  a  teacher  has  been  em- 
ployed and  the  public  interest  demands  that  there  should  be 
a  definite  agreement  before  the  time  arrives  for  school  to 
open,  otherwise  the  school  corporation  may  be  at  the  mercy 
of  the  teacher,  or  else  there  be  no  school.  We  think  that 
a  teacher  cannot  recover  from  a  school  corporation  for  the 
breach  of  an  executory  agreement  unless  it  is  so  full  and 
definite  as  to  be  capable  of  specific  enforcement. 

Judgment  reversed. 


*\ 


lv 

Offer  or  acceptance  or  both  may  be  made  by 
words  or  conduct 


FOGG  v.  PORTSMOUTH  ATHENAEUM, 
44  N.  H.  115  (1862). 

Action  on  contract. 

The  case  was  submitted  to  the  decision  of  the  court 
upon  the  following  agreed  statement  of  facts : 

The  defendants  are  a  corporation  whose  object  is  the 
support  of  a  library  and  public  reading  room,  at  which  latter 
a  large  number  of  newspapers  are  taken.  Some  are  sub- 
scribed and  paid  for  by  the  defendants ;  others  are  placed 
there  gratuitously  by  the  publishers  and  others ;  and  some 
are  sent  there  apparently  for  advertising  purposes  merely, 
and  of  course  gratuitously. 

The  Independent  Democrat  newspaper  was  furnished 
to  the  defendants,  through  the  mail,  by  its  then  publishers, 
from  Vol.  3,  No.  1  (May  1,  1847).  On  the  29th  of  Novem- 
ber, 1848,  a  bill  for  the  paper,  from  Vol.  3,  No.  1  (May  1, 
1847),  to  Vol.  5,  No.  1  (May  1,  1849),  two  years,  at  $1.50 
per  year,  was  presented  to  the  defendants  by  one  T.  H. 
Miller,  agent  for  the  then  publishers,  for  payment.  The 
defendants  objected  that  they  had  never  subscribed  for  the 
paper,  and  were  not  bound  to  pay  for  it.  They  at  first 
refused  on  that  ground  to  pay  for  it,  but  finally  paid  the 
bill  to  said  Miller,  and  took  upon  the  back  thereof  a  receipt 

in  the  following  words  and  figures : 

"Nov.  29,  1848. 
"The  within  bill  paid  this  day,  and  the  paper  is  henceforth  to 
be  discontinued. 

"T.  H.  MILLER,  for  Hood  &  Co." 

Hood  &  Co.  were  the  publishers  of  the  paper  from 

May  1,  1847,  until  February  12,  1849,  when  that  firm  was 

dissolved,  and  the  paper  was  afterwards  published  by  the 

present  plaintiffs.    The  change  of  publishers  was  announced, 

editorially  and  otherwise,  in  the  paper  of  February  15,  1849, 

and  the  names  of  the  new  publishers  were  conspicuously 

inserted  in  each  subsequent  number  of  the  paper,  but  it  did 


20 

not  appear  that  the  change  was  actually  known  to  Mr. 
Hatch,  the  secretary  and  treasurer  of  the  corporation,  who 
settled  the  above  named  bill,  and  who  continued  in  the  office 
till  January,  1850. 

The  plaintiffs  had  no  knowledge  of  the  agreement  of 
the  agent  of  Hood  &  Co.  to  discontinue  the  paper,  as  set 
forth  in  the  receipt  of  November  29,  1848,  until  notified 
thereof  by  the  defendants,  after  they  had  furnished  the 
paper  to  the  defendants  for  a  year  or  more ;  the  books  of 
Hood  &  Co.,  which  came  into  their  hands,  only  showing 
that  the  defendants  had  paid  for  the  paper,  in  advance,  to 
May  1,  1849. 

After  the  payment  of  the  bill  and  giving  of  the  receipt 
above  recited,  the  paper  continued  to  be  regularly  forwarded 
by  its  publishers,  through  the  mail,  to  the  defendants,  from 
the  date  of  said  receipt  until  May  1,  1849,  the  expiration  of 
the  period  named  in  said  bill;  and  was  in  like  manner 
forwarded  from  May  1,  1849,  to  January  1,  1860,  or  from 
Vol.  5,  No.  1,  to  Vol.  15,  No.  35,  inclusive,  the  period 
claimed  to  be  recovered  for  in  this  suit ;  and  was  during 
all  that  time  constantly  taken  from  the  post  office  by  the 
parties  employed  by  the  defendants  to  take  charge  of  their 
reading  room,  build  fires,  etc.,  and  placed  in  their  reading 
room.  Payment  was  several  times  demanded  during  the 
latter  period,  of  the  defendants,  by  an  agent  or  agents  of 
the  plaintiffs ;  but  the  defendants  refused  to  pay,  on  the 
ground  that  they  were  not  subscribers  for  the  paper. 

Conspicuously  printed  in  each  number  of  the  paper  sent 

to  and  received  by  the  defendants  were  the  following: 

"Terms  of  Publication:  By  mail,  express  or  carrier,  $1.50  a 
year,  in  advance ;  $2  if  not  paid  within  the  year.  No  paper  discon- 
tinued (except  at  the  option  of  the  publisher)  unless  all  arrearages 
are   paid."    *    *     * 

Nesmith,  J. :  There  is  no  pretense  upon  the  agreed 
statement  of  this  case  that  the  defendants  can  be  charged 
upon  the  ground  that  they  were  subscribers  for  the  plain- 
tiffs' newspaper,  or  that  they  were  liable  in  consequence  of 
the  existence  of  any  express  contract  whatever.     Bvt  the 


21 

question  now  is,  have  the  defendants  so  conducted  them- 
selves as  to  make  themselves  liable  to  pay  for  the  plaintiffs' 
newspaper  for  the  six  years  prior  to  the  date  of  the  plain- 
tiffs' writ,  under  an  implied  contract  raised  by  the  law  and 
made  applicable  to  this  case. 

If  the  seller  does  in  any  case  what  is  usual,  or  what 
the  nature  of  the  case  makes  convenient  and  proper,  to 
pass  the  effectual  control  of  the  goods  from  himself  to  the 
buyer  this  is  always  a  delivery.  In  like  manner  as  to  the 
question  of  acceptance,  we  must  inquire  into  the  intention 
of  the  buyer,  as  evinced  by  his  declarations  and  acts,  the 
nature  of  the  goods,  and  the  circumstances  of  the  case. 
If  the  buyer  intend  to  retain  possession  of  the  goods,  and 
manifests  this  intention  by  a  suitable  act,  it  is  an  actual 
acceptance  of  them ;  or  this  intention  may  be  manifested  by 
a  great  variety  of  acts  in  accordance  with  the  varying  cir- 
cumstances of  each  case.    2  Pars,  on  Con.  325. 

Again  the  law  will  imply  an  assumpsit,  and  the  owner 
of  goods  has  been  permitted  to  recover  in  this  form  of 
action,  where  they  have  been  actually  applied,  appropriated, 
and  converted  by  the  defendant  to  his  own  beneficial  use. 
Hitchin  v.  Campbell,  2  W.  Black,  827.     *    *    * 

Where  there  has  been  such  a  specific  appropriation  of 
the  property  in  question,  the  property  passes,  subject  to  the 
vendor's  lien  for  the  price.     *     *     * 

In  Wheatherby  v.  Bonham  (5  C.  &  P.  228)  the  plaintiff 
was  publisher  of  a  periodical  called  the  Racing  Calendar. 
It  appeared  that  he  had  for  some  years  supplied  a  copy  of 
that  work,  as  fast  as  the  numbers  came  out,  to  Mr.  West- 
brook;  Westbrook  died  in  the  year  1820;  the  defendant, 
Bonham,  succeeded  to  Westbrook's  property,  and  went  to 
live  in  his  house,  and  there  kept  an  inn.  The  plaintiff,  not 
knowing  of  Westbrook's  death,  continued  to  send  the  num- 
bers of  the  Calendar  as  they  were  published,  by  the  stage- 
coach, directed  to  Westbrook.  The  plaintiff  proved  by  a 
servant  that  they  were  received  by  the  defendant,  and  no 
evidence  was  given  that  the  defendant  had  ever  offered  to 


22 

return  them.  The  action  was  brought  to  recover  the  price 
of  the  Calendar  for  the  years  1825  and  1826.  Talford,  for 
the  defendant,  objected  that  there  never  was  any  contract 
between  the  plaintiff  and  the  present  defendant,  and  that 
the  plaintiff  did  not  know  him.  But,  Lord  Tenterden  said : 
"If  the  defendant  received  the  books  and  used  them,  I  think 
the  action  is  maintainable.  Where  books  come  addressed 
to  the  deceased  gentleman  whose  estate  has  come  to  the 
defendant,  and  he  keeps  the  books,  I  think,  therefore,  he  is 
clearly  liable  in  this  form  of  action,  being  for  goods  sold 
and  delivered." 

The  preceding  case  is  very  similar,  in  many  respects,  to 
the  case  before  us.  Agreeably  to  the  defendants'  settlement 
with  Hood  &  Co.,  their  contract  to  take  their  newspaper 
expired  on  the  1st  of  May,  1849.  It  does  not  appear  that 
the  fact  that  the  paper  was  then  to  stop  was  communicated 
to  the  present  plaintiffs,  who  had  previously  become  the 
proprietors  and  publishers  of  the  newspaper  establishment ; 
having  the  defendants'  name  entered  on  their  books,  and 
having  for  some  weeks  before  that  time  forwarded  numbers 
of  their  newspaper,  by  mail,  to  the  defendants,  they,  after 
the  first  of  May,  continued  so  to  do  up  to  January  1,  1860. 
During  this  period  of  time  the  defendants  were  occasionally 
requested,  by  the  plaintiffs'  agent,  to  pay  their  bill.  The 
answer  was,  by  the  defendants,  we  are  not  subscribers  to 
your  newspaper.  But  the  evidence  is,  the  defendants  used, 
or  kept  the  plaintiffs'  books,  or  newspapers,  and  never 
offered  to  return  a  number,  as  they  reasonably  might  have 
done,  if  they  would  have  avoided  the  liability  to  pay  for 
them.  Nor  did  they  ever  decline  to  take  the  newspapers 
from  the  post  office. 

If  the  defendants  would  have  avoided  the  liability  to 
pay  the  plaintiffs,  they  might  reasonably  have  returned  the 
paper  to  the  plaintiffs,  or  given  notice  that  they  declined  to 
take  the  paper  longer. 

We  are  of  the  opinion  that  the  defendants  have  the 
right   to   avail   themselves    of    the    statute    of    limitations. 


23 

Therefore,  the  plaintiffs  can  recover  no  more  of  their 
account  than  is  embraced  in  the  six  years  prior  to  the  date 
of  their  writ,  and  at  the  sum  of  $2  per  year,  with  interest, 
from  date  of  writ,  or  the  date  of  the  earliest  demand  of  the 
plaintiffs'  claim  upon  the  defendants. 


Offer  or  acceptance  or  both  may  be  by      , 
words  or  conduct 

HOBBS  v.  MASSASOIT  WHIP  CO., 

158  Mass.  194  (1893). 

Appeal  from  judgment  for  plaintiff. 

Holmes,  J. :  This  is  an  action  for  the  price  of  eel-skins 
sent  by  the  plaintiff  to  the  defendant,  and  kept  by  the  de- 
fendant some  months,  until  they  were  destroyed.  It  must 
be  taken  that  the  plaintiff  received  no  notice  that  the 
defendants  declined  to  accept  the  skins.  The  case  comes 
before  us  on  exceptions  to  an  instruction  to  the  jury,  that, 
whether  there  was  any  prior  contract  or  not,  if  the  skins 
are  sent  to  the  defendant,  and  it  sees  fit,  whether  it  has 
agreed  to  take  them  or  not,  to  lie  back,  and  to  say  nothing, 
having  reason  to  suppose  that  the  man  who  has  sent  them 
believes  that  it  is  taking  them,  since  it  says  nothing  about 
it,  then  if  it  fails  to  notify,  the  jury  would  be  warranted  in 
finding  for  the  plaintiff. 

Standing  alone,  and  unexplained,  this  proposition  might 
seem  to  imply  that  one  stranger  may  impose  a  duty  upon 
another,  and  make  him  a  purchaser,  in  spite  of  himself,  by 
sending  goods  to  him,  unless  he  will  take  the  trouble,  and 
be  at  the  expense  of  notifying  the  sender  that  he  will  not 
buy.  The  case  was  argued  for  the  defendant  on  that  inter- 
pretation. But,  in  view  of  the  evidence,  we  do  not  under- 
stand that  to  have  been  the  meaning  of  the  judge,  and  we 
do  not  think  that  the  jury  can  have  understood  that  to  have 


24 

been  his  meaning.  The  plaintiff  was  not  a  stranger  to  the 
defendant,  even  if  there  was  no  contract  between  them. 
He  had  sent  eel-skins  in  the  same  way  four  or  five  times 
before,  and  they  had  been  accepted  and  paid  for.  On  the 
defendant's  testimony,  it  is  fair  to  assume  that,  if  it  had 
admitted  the  eel-skins  to  be  over  22  inches  in  length,  and 
fit  for  its  business,  as  the  plaintiff  testified,  and  the  jury 
found  that  they  were,  it  would  have  accepted  them ;  that 
this  was  understood  by  the  plaintiff ;  and,  indeed,  that  there 
was  a  standing  offer  to  him  for  such  skins.  In  such  a  con- 
dition of  things,  the  plaintiff  was  warranted  in  sending  the 
defendant  skins  conforming  to  the  requirements,  and  even 
if  the  offer  was  not  such  that  the  contract  was  made  as  soon 
as  skins  corresponding  to  its  terms  were  sent,  sending  them 
did  impose  on  the  defendant  a  duty  to  act  about  them ;  and 
silence  on  its  part,  coupled  with  a  retention  of  the  skins,  for 
an  unreasonable  time,  might  be  found  by  the  jury  to  war- 
rant the  plaintiff  in  assuming  that  they  were  accepted,  and 
thus  to  amount  to  an  acceptance.  *  *  *  The  proposition 
stands  on  the  general  principle  that  conduct  which  imports 
acceptance  or  assent  is  acceptance  or  assent  in  the  view  of 
the  law,  whatever  may  have  been  the  actual  state  of  mind  of 
the  party — a  principle  sometimes  lost  sight  of  in  the  cases. 
*  *  *  O'Donnell  v.  Clinton,  145  Mass.  461. 
Judgment  affirmed. 


Seriousness  of  intent 

KELLER  v.  HOLDERMAN, 

11  Mich.  248  (1863). 

Appeal  from  judgment  for  plaintiff. 

Action  by  Holderman  against  Keller  upon  a  check  for 
$300  drawn  by  Keller  upon  a  banker  at  Niles  and  not  hon- 
ored.    The  cause  was  tried  without  a  jury  and  the  circuit 


25 

judge  found  as  facts  that  the  check  was  given  for  an  old 
silver  watch  worth  about  $15  which  Keller  took  and  kept 
until  the  day  of  trial,  when  he  offered  to  return  it  to  the 
plaintiff  [Holderman  was  the  plaintiff  below],  who  refused 
to  receive  it.  The  whole  transaction  was  a  frolic  and 
banter — the  plaintiff  not  expecting  to  sell  nor  the  defendant 
intending  to  buy  the  watch  at  the  sum  for  which  the  check 
was  drawn.  The  defendant  when  he  drew  the  check  had 
no  money  in  the  banker's  hands,  and  had  intended  to  insert 
a  condition  in  the  check  that  would  prevent  his  being  liable 
upon  it ;  but  as  he  had  failed  to  do  so,  and  had  retained  the 
watch,  the  judge  held  him  liable,  and  judgment  was  ren- 
dered against  him  for  the  amount  of  the  check. 

Martin,  C.  J. :  When  the  court  below  found  as  a  fact 
that  "the  whole  transaction  between  the  parties  was  a  frolic 
and  a  banter,  the  plaintiff  not  expecting  to  sell,  nor  the 
defendant  intending  to  buy  the  watch  at  the  sum  for  which 
the  check  was  drawn,"  the  conclusion  should  have  been  that 
no  contract  was  ever  made  by  the  parties,  and  the  finding 
should  have  been  that  no  cause  of  action  existed  upon  the 
check  to  the  plaintiff. 

The  judgment  of  the  lower  court  reversed. 


Seriousness  of  intent — Promissory  expressions 
HIGGINS  v.  LESSIG, 
49  111.  App.  459  (1893). 

Appeal  from  judgment^  for  plaintiff  (appellee). 

Cartwright,  J. :  Appellant  was  the  owner  of  a  set  of 
old  double  harness,  worth  perhaps  $15,  which  was  taken 
from  his  premises  without  his  knowledge,  and  he  offered 
a  reward  of  $100  for  the  recovery  of  the  harness  and  the 
conviction  of  the  thief.  A  few  days  afterward  a  boy  named 
Wilt  found  part  of  the  harness  in  appellee's  berry  patch, 


26 

and  the  appellant  went  with  appellee  to  the  place  and 
brought  that  part  of  the  harness  into  appellee's  blacksmith 
shop.  Appellant  gave  the  boy  who  had  found  the  harness 
a  quarter  of  a  dollar,  and  said  he  would  give  him  a  dollar 
to  find  the  rest  of  it.  Appellee  claims  that  appellant  at  that 
time  offered  a  reward  of  $100  to  the  one  who  would  find 
out  who  the  thief  was,  and  that  he  earned  the  reward.  This 
suit  was  brought  to  recover  the  amount  so  claimed  as  a 
reward,  and  a  trial  resulted  in  a  verdict  and  judgment  for 
appellee  for  $100. 

The  evidence  showed  that  the  defendant  was  much 
excited  on  the  occasion,  when  it  is  claimed  that  the  offer 
was  made  in  the  shop.  Plaintiff's  version  of  the  language 
used  was  that  defendant  said,  "I  will  give  $100  to  any  man 
who  will  find  out  who  the  thief  is,  and  I  will  give  a  lawyer 
$100  for  prosecuting  him,"  using  rough  language  and 
epithets  concerning  the  thief.  There  was  evidence  of  sub- 
stantial repetitions  of  the  statement,  together  with  the  asser- 
tion that  he  would  not  have  a  second-class  lawyer,  either, 
and  that  he  would  not  hire  a  cheap  lawyer,  but  a  good 
lawyer.  The  harness  had  been  taken  by  a  man  called  Red 
John  Smith,  who  had  been  adjudged  insane,  and  a  Mrs. 
Phillips  told  the  plaintiff  that  she  saw  Smith  walking  by 
with  the  harness  on  his  back,  on  Sunday  morning,  which 
was  the  time  when  it  was  taken.  Plaintiff  watched  Smith 
that  night  and  saw  him  hiding  the  collars,  and  the  next  day 
he  waited  for  the  return  of  the  defendant  from  Galesburg, 
and  told  him  that  Red  John  Smith  had  the  harness.  A 
search  warrant  was  procured,  and  the  remainder  of  the 
harness  was  found. 

We  do  not  think  that  the  language  used  was  such  as, 
under  the  circumstances,  would  show  an  intention  to  con- 
tract to  pay  a  reward,  and  think  plaintiff  had  no  right  to 
regard  it  as  such.  Defendant  had  previously  offered  a  very 
liberal  reward  for  the  return  of  the  old  harness  and  the 
conviction  of  the  thief.  On  this  occasion  he  paid  the  boy 
only  a  trifling  sum,  and  offered  only  $1  for  finding  the  rest 


27 

of  the  property.  His  further  language  was  in  the  nature 
of  an  explosion  of  wrath  against  some  supposed  thief  who 
had  stolen  the  harness,  and  was  coupled  with  boasting  and 
bluster  about  the  prosecution  of  the  thief.  It  was  indicative 
of  a  state  of  excitement  so  out  of  proportion  to  the  sup- 
posed cause  of  it,  that  it  should  be  regarded  rather  as  the 
extravagant  exclamation  of  an  excited  man  than  as  mani- 
festing an  intention  to  contract. 
Judgment  reversed. 


Seriousness  of  intent — Promissory  expressions 

REIF  v.  PAIGE, 

55  Wis.  496  (1882). 

Appeal  by  plaintiff  from  a  non-suit. 

During  the  afternoon  of  December  3,  1880,  the  "Beck- 
with  House,"  in  Oshkosh,  was  destroyed  by  fire.  The  de- 
fendant and  his  wife  lived  in  this  hotel,  occupying  rooms 
in  the  fourth  story.  When  the  fire  broke  out  Mrs.  Paige 
was  in  those  rooms  and  perished  in  the  flames.  The  mem- 
bers of  the  fire  department  placed  a  ladder  at  a  window  near 
where  Mrs.  Paige  was  supposed  to  be,  and  at  least  two 
firemen  attempted  to  enter  the  window  and  rescue  her,  but 
were  driven  back  by  the  smoke  and  flames.  The  ladder 
was  then  removed,  but  subsequently  was  replaced  at  the 
same  window.  About  this  time,  and  after  the  fire  had  been 
raging  30  minutes  or  more,  the  defendant,  who  had  been 
absent,  reached  the  scene  of  the  fire,  and,  as  it  is  alleged  in 
the  complaint,  offered  and  promised  to  pay  a  reward  of 
$5000  to  any  person  who  would  rescue  his  wife  from  the 
burning  building  dead  or  alive.  The  plaintiff  claims  that 
he  has  earned  the  reward  thus  offered,  and  has  brought  this 
action  to  recover  the  same. 

The  complaint  alleges  that  the  plaintiff',  on  being  in- 
formed of  such  offer  and  promise,  and  confiding  in  and 


28 

relying  upon  the  same,  entered  such  rooms  in  the  fourth 
story  of  the  burning  building,  at  great  peril  to  his  life  and 
health,  removed  therefrom  the  dead  body  of  Mrs.  Paige 
and  delivered  the  same  to  the  defendant.  Also  that  no  part 
of  the  said  $5000  has  been  paid  to  him,  and  that  the  same 
is  now  due  and  payable.     *     *     * 

The  testimony  on  the  trial  tended  to  prove  that  the  de- 
fendant offered  the  reward  and  that  with  knowledge  of  the 
offer  and  on  the  faith  of  it,  and  for  the  purpose  of  earning 
the  reward,  the  plaintiff  ascended  the  ladder,  entered  the 
building  and  rescued  the  dead  body  of  Mrs.  Paige  from  the 
flames  to  the  knowledge  of  the  defendant.  No  formal  notice 
was  given  by  the  plaintiff  to  the  defendant  before  this 
action  was  commenced  that  the  former  had  acted  in  the 
premises  upon  such  offer  and  claimed  the  reward,  and  no 
demand  therefor  was  made  upon  the  defendant.  The  circuit 
court  non-suited  the  plaintiff,  and  judgment  against  him  was 
entered  accordingly.     The  plaintiff  appealed. 

Lyon,  J. :  *  *  *  The  offer  of  a  reward  by  the  de- 
fendant for  rescuing  the  body  of  his  wife,  and  the  rescue 
of  her  remains  by  the  plaintiff  with  knowledge  of  such  offer, 
and  with  a  view  to  obtaining  the  reward  offered,  constituted 
a  contract  between  parties,  which  was  fully  and  completely 
executed  by  the  plaintiff.  The  offer  which  the  proofs  tend 
to  show  the  defendant  made,  was,  in  substance,  "I  will 
give  $5000  to  any  person  who  will  bring  the  body  of  my 
wife  out  of  that  building,  dead  or  alive."  There  was  no 
restrictions  or  limitations  to  the  offer,  and  no  additional 
requirement  upon  the  claimant  of  the  offered  bounty.  Hence 
when  the  plaintiff,  with  a  view  to  obtaining  the  offered 
reward,  rescued  the  body  of  Mrs.  Paige,  he  had  done  all 
that  the  offer  required  him  to  do,  and  if  he  has  any  cause 
of  action  it  was  then  complete.     *     *     * 

The  learned  circuit  judge  non-suited  the  plaintiff  on 
the  ground  that  it  was  his  duty  as  a  paid  officer  and  member 
of  the  fire  department  of  Oshkosh  to  rescue  persons  as  well 
as  property  from  fires,  and  that  it  was  against  sound  public 


29 

policy  to  allow  him  to  contract  for  a  reward  for  recovering 
the  body  of  Mrs.  Paige.     *     *     * 

There  was  considerable  discussion  by  counsel  as  to 
what  are  the  duties  of  firemen.  We  know  of  no  guide  for 
ascertaining  these  duties  other  than  the  charter  of  the 
municipality,  in  which  they  are  employed,  and  the  ordi- 
nances or  by-laws  enacted  pursuant  thereto.  The  ordi- 
nances of  the  city  of  Oshkosh  in  respect  to  its  fire  depart- 
ment were  read  in  evidence,  and  reference  made  to  the  city 
charter  in  that  behalf.  We  do  not  care  to  comment  upon 
these,  for  we  are  clear  that  there  is  nothing  in  them  which 
made  it  the  duty  of  the  plaintiff  to  enter  the  fourth  story 
of  the  burning  building  and  rescue  the  body  of  Mrs.  Paige 
from  the  flames,  at  the  imminent  hazard  of  losing  his  own 
life.  That  he  incurred  such  hazard  there  can  be  no  doubt 
from  the  testimony.  He  did  not,  as  does  a  soldier,  contract 
to  risk  his  life  in  the  service.  The  most  that  can  reason- 
ably be  claimed  is  that,  short  of  risking  his  life,  he  con- 
tracted to  use  his  best  judgment  and  efforts  in  extinguishing 
fires,  and  in  saving  persons  and  property  from  destruction 
or  injur}'.  But  it  is  quite  doubtful  whether  a  fireman  em- 
ployed under  the  charter  and  ordinances  of  Oshkosh  owes 
any  duty  as  a  fireman  to  rescue  persons  from  burning  build- 
ings.    *     *     * 

It  follows,  that  inasmuch  as  the  plaintiff  could  not 
rescue  the  body  of  Mrs.  Paige  from  the  burning  building 
without  imminent  peril  of  losing  his  own  life,  and  inasmuch 
as  it  was  not  his  duty  as  a  paid  officer  and  member  of  the 
fire  department  to  do  so,  he  is  in  a  position  to  claim  the 
reward  alleged  to  have  been  offered  by  the  defendant  for 
such  rescue. 

Judgment  of  non-suit  must  be  reversed  and  the  cause 
remanded  for  a  new  trial. 


30  y 

Seriousness  of  intent — Invitation  to  purchase 

MOULTON  v.  KERSHAW  ET  AL., 

59  Wis.  316  (1884). 

Appeal  from  order  overruling  a  demurrer  to  plaintiff's 
complaint. 

The  case  is  thus  stated  by  Mr.  Justice  Taylor  : 
"The  complaint  alleges  that  the  defendants  were  deal- 
ers in  salt  in  the  city  of  Milwaukee,  including  salt  of  the 
Michigan  Salt  Association;  that  the  plaintiff  was  a  dealer 
in  salt  in  the  city  of  La  Crosse,  and  accustomed  to  buy  salt 
in  large  quantities,  which  fact  was  known  to  the  defendants ; 
that  on  the  19th  day  of  September,  1882,  the  defendant,  at 
Milwaukee,  wrote  and  posted  to  the  plaintiff  at  La  Crosse 
a  letter,  of  which  the  following  is  a  copy : 

"  'Milwaukee,  September  19,  1882. 
"  'J-  H.  Moulton,  Esq.,  La  Crosse,  Wis. — Dear  Sir :  In  con- 
sequence of  a  rupture  in  the  salt  trade,  we  are  authorized  to  offer 
Michigan  fine  salt,  in  full  car-load  lots  of  eighty  to  ninety-five  bbls., 
delivered  at  your  city,  at  85c  per  bbl.,  to  be  shipped  per  C.  &  N.  W. 
R.  R.  Co.  only.  At  this  price  it  is  a  bargain,  as  the  price  in  general 
remains  unchanged.     Shall  be  pleased  to   receive  your  order. 

"  'Yours   truly, 
"'C.  J.  KERSHAW  &  SOX.' 

"The  balance  of  the  complaint  reads  as  follows :  'And 
this  plaintiff  alleges,  upon  information  and  belief,  that  said 
defendants  did  not  send  said  letter  and  offer  by  authority 
of,  or  as  agents  of,  the  Michigan  Salt  Association,  or  any 
other  party,  but  on  their  own  responsibility.  And  the  plain- 
tiff further  shows  that  he  received  said  letter  in  due  course 
of  mail,  to  wit,  on  the  20th  day  of  September,  1882,  and 
that  he,  on  that  day,  accepted  the  offer  in  said  letter  con- 
tained, to  the  amount  of  two  thousand  barrels  of  salt  therein 
named,  and  immediately,  and  on  said  day,  sent  to  said  de- 
fendants at  Milwaukee  a  message  by  telegraph,  as  follows : 

"  'La  Crosse,  September  20,  1882. 
"  'To  C.  J.  Kershaw  &  Son,  Milwaukee,  Wis. — Your  letter  of 
yesterday    received   and   noted.     You    may    ship   me   two   thousand 
(2000)  barrels  Michigan  fine  salt,  as  offered  in  your  letter.    Answer. 

"'J.  H.  MOULTON.' 


31 

"That  although  said  defendants  received  said  accept- 
ance and  order  of  this  plaintiff  on  the  20th  day  of  Septem- 
ber, 1882,  they  attempted,  on  the  21st  day  of  September, 
1882,  to  withdraw  the  offer  contained  in  their  said  letter  of 
September  19,  1882,  and  did,  on  said  21st  day  of  September, 
1882,  notify  this  plaintiff  of  the  withdrawal  of  said  offer 
on  their  part,  that  this  plaintiff  thereupon  demanded  of  the 
defendants  the  delivery  to  him  of  two  thousand  barrels  of 
Michigan  fine  salt,  in  accordance  with  the  terms  of  said 
offer,  accepted  by  this  plaintiff  as  aforesaid,  and  offered  to 
pay  them  therefor  in  accordance  with  said  terms,  and  this 
plaintiff  was  ready  to  accept  said  two  thousand  barrels,  and 
ready  to  pay  therefor  in  accordance  with  said  terms.  Nev- 
ertheless, the  defendants  utterly  refused  to  deliver  the  same, 
or  any  part  thereof,  by  reason  whereof  this  plaintiff  sus- 
tained damage  to  the  amount  of  eight  hundred  dollars. 

"To  this  complaint  the  defendants  interposed  a  general 
demurrer.  The  Circuit  Court  overruled  the  demurrer,  and 
from  the  order  overruling  the  same  the  defendants  appeal 
to  this  Court." 

Taylor,  J. :  The  only  question  presented  is  whether 
the  appellants'  letter,  and  the  telegram  sent  by  the  respond- 
ent in  reply  thereto,  constitute  a  contract  for  the  sale  of 
2000  barrels  of  Michigan  fine  salt  by  the  appellants  to  the 
respondent  at  the  price  named  in  such  letter. 

The  counsel  for  the  respondent  claims  that  the  letter 
of  the  appellants  is  an  offer  to  sell  to  the  respondent,  on 
the  terms  mentioned,  any  reasonable  quantity  of  Michigan 
fine  salt  that  he  might  see  fit  to  order,  not  less  than  one 
carload.  On  the  other  hand,  the  counsel  for  the  appellants 
claim  that  the  letter  is  not  an  offer  to  sell  any  specific 
quantity  of  salt,  but  simply  a  letter  such  as  a  business  man 
would  send  out  to  customers  or  those  with  whom  he  de- 
sired to  trade,  soliciting  their  patronage.  To  give  the  letter 
of  the  appellants  the  construction  claimed  for  it  by  the 
learned  counsel  for  the  respondent,  would  introduce  such  an 
element  of  uncertainty  into  the  contract  as  would  necessarily 


32 

render  its  enforcement  a  matter  of  difficulty,  and  in  every 
case  the  jury  trying  the  case  would  be  called  upon  to  deter- 
mine whether  the  quantity  ordered  was  such  as  the  appel- 
lants might  reasonably  expect  from  the  party.  This  ques- 
tion  would  necessarily  involve  an  inquiry  into  the  nature 
and  extent  of  the  business  of  the  person  to  whom  the  letter 
was  addressed,  as  well  as  to  the  extent  of  the  business  of 
the  appellants.  So  that  it  would  be  a  question  of  fact  for 
the  jury  in  each  case  to  determine  whether  there  was  a 
binding  contract  between  the  parties.  And  this  question 
would  not  in  any  way  depend  upon  the  language  used  in 
the  written  contract,  but  upon  proofs  to  be  made  outside 
of  the  writings.  As  the  only  communications  between  the 
parties,  upon  which  a  contract  can  be  predicated,  are  the 
letter  and  the  reply  of  the  respondent,  we  must  look  to 
them,  and  nothing  else,  in  order  to  determine  whether  there 
was  a  contract  in  fact.  We  are  not  at  liberty  to  help  out 
the  written  contract,  if  there  be  one,  by  adding  by  parol 
evidence  additional  facts  to  help  out  the  writing  so  as  to 
make  out  a  contract  not  expressed  therein.  If  the  letter 
of  the  appellants  is  an  offer  to  sell  salt  to  the  respondent 
on  the  terms  stated,  then  it  must  be  held  to  be  an  offer  to 
sell  any  quantity  at  the  option  of  the  respondent  not  less 
than  one  carload.  The  difficulty  and  injustice  of  construing 
the  letter  into  such  an  offer  is  so  apparent  that  the  learned 
counsel  for  the  respondent  do  not  insist  upon  it,  and  conse- 
quently insist  that  it  ought  to  be  construed  as  an  offer  to 
sell  such  quantity  as  the  appellants,  from  their  knowledge 
of  the  business  of  the  respondent,  might  reasonably  expect 
him  to  order. 

Rather  than  introduce  such  an  element  of  uncertainty 
into  the  contract,  we  deem  it  much  more  reasonable  to  con- 
strue the  letter  as  a  simple  notice  to  those  dealing  in  salt 
that  the  appellants  were  in  a  condition  to  supply  that  article 
for  the  prices  named,  and  requesting  the  person  to  whom  it 
was  addressed  to  deal  with  them.  This  case  is  one  where 
it  is  eminently  proper  to  heed  the  injunction  of  Justice 


33 

Foster  in  the  opinion  in  Lyman  v.  Robinson,  14  Allen  254 : 
"That  care  should  always  be  taken  not  to  construe  as  an 
agreement  letters  which  the  parties  intended  only  as  pre- 
liminary negotiations." 

We  do  not  wish  to  be  understood  as  holding  that  a 
party  may  not  be  bound  by  an  offer  to  sell  personal  property, 
where  the  amount  or  quantity  is  left  to  be  fixed  by  the 
person  to  whom  the  offer  is  made,  when  the  offer  is  ac- 
cepted and  the  amount  or  quantity  fixed  before  the  offer  is 
accepted  and  the  amount  or  quantity  fixed  before  the  offer 
is  withdrawn.  We  simply  hold  that  the  letter  of  the  appel- 
lants in  this  case  was  not  such  an  offer.  If  the  letter  had 
said  to  the  respondent  we  will  sell  you  all  the  Michigan 
fine  salt  you  will  order,  at  the  price  and  on  the  terms  named, 
then  it  is  undoubtedly  the  law  that  the  appellants  would 
have  been  bound  to  deliver  any  reasonable  amount  the 
respondent  might  have  ordered,  possibly  any  amount,  or 
make  good  their  default  in  damages. 

We  place  our  opinion  upon  the  language  of  the  letter 
of  the  appellants,  and  hold  that  it  cannot  be  fairly  construed 
into  an  offer  to  sell  to  the  respondent  any  quantity  of  salt 
he  might  order,  nor  any  reasonable  amount  he  might  see  fit 
to  order.  The  language  is  not  such  as  a  business  man  would 
use  in  making  an  offer  to  sell  to  an  individual  a  definite 
amount  of  property.  The  word  "sell"  is  not  used.  They 
say,  "we  are  authorized  to  offer  Michigan  fine  salt,"  etc., 
and  volunteer  an  opinion  that  at  the  terms  stated  it  is  a 
bargain.  They  do  not  say,  we  offer  to  sell  to  you.  They 
use  general  language  proper  to  be  addressed  generally  to 
those  who  were  interested  in  the  salt  trade.  It  is  clearly 
in  the  nature  of  an  advertisement  or  business  circular,  to 
attract  the  attention  of  those  interested  in  that  business  to 
the  fact  that  good  bargains  in  salt  could  be  had  by  applying 
to  them,  and  not  as  an  offer  by  which  they  were  to  be 
bound,  if  accepted,  for  any  amount  the  persons  to  whom  it 
was  addressed  might  see  fit  to  order.  We  think  the  com- 
plaint fails  to  show  any  contract  between  the  parties,  and 
the  demurrer  should  have  been  sustained. 


34 


By  the  Court. — The  order  of  the  circuit  court  is  re- 
versed, and  the  cause  remanded  for  further  proceedings 
according  to  law. 


Seriousness  of  intent — Competitive  bids  as  offers 

LESKIE  v.  HAZELTINE, 

155  Pa.  98  (1893). 

Appeal  from  judgment  for  defendant. 

This  was  an  action  on  an  alleged  agreement  to  award 
a  building  contract.  At  the  trial  it  appeared  that  by  a  let- 
ter dated  March  28,  1887,  the  defendant  requested  the 
plaintiff  to  bid  for  the  contract  of  erecting  the  Hazeltine 
Building  in  Philadelphia.  Plaintiff  complied  with  the  re- 
quest and  presented  a  bid  which  was  found  to  be  the  lowest 
bid.  Plaintiff  testified  that  when  the  bids  were  opened 
defendant  said  to  him :  "You  are  the  lucky  man  *  *  * 
You  have  won,  and  fairly  so."  Plaintiff  further  testified 
in  effect  that  he  was  to  begin  work  as  soon  as  the  contract 
was  signed.  The  court  charged  the  jury  in  part  as  follows : 
*  *  *  "It  is  incumbent  upon  the  plaintiff,  before  he  is 
entitled  to  a  verdict  in  this  case,  to  satisfy  you  by  the  evi- 
dence that  there  was  a  distinct  promise  made  to  him,  a  dis- 
tinct agreement  made  with  him ;  not  merely  that  there  was 
talk  about  his  being  the  successful  bidder  and  his  probably 
getting  the  contract,  but  he  must  show  that  at  some  time 
the  defendant,  or  somebody  authorized  to  speak  for  the 
defendant,  entered  into  that  agreement  with  him,  not  that 
he  talked  about  it. 


Editor's  Note. — General  advertisements  in  newspapers,  by  de- 
partment stores  are  mere  quotations  of  prices.  Expressions  lauda- 
tory of  the  commodity  presented  to  the  public,  or  to  a  person,  are 
not  to  be  taken  as  constituting  any  part  of  an  offer  and  do  not  bind 
the  one  using  such  expressions.  (Carlill  v.  Carbolic  Smoke  Ball 
Co..  1  Q.  B.  256.) 


35 

"It  is  a  vew  serious  question  in  my  mind  whether 
there  is  evidence  in  this  case  which  would  justify  you  in 
reaching  the  conclusion  that  there  was  at  any  time  »any 
such  agreement  entered  into,  that  the  minds  of  the  de- 
fendant and  plaintiff  ever  met  upon  a  distinct  agreement 
that  the  plaintiff  should  have  this  contract,  and  I  say  to 
you  at  this  point  *  *  *  that  the  mere  fact  that  the 
plaintiff  was  the  lowest  bidder  gave  him  no  right  whatever 
to  get  the  contract.  It  was  not  necessary  to  put  in  the 
invitation  for  bids  or  the  specifications  that  the  owner  of 
the  ground  reserved  the  right  to  reject  the  lowest  bidder 
or  any  other.     *     *     * 

Verdict  and  judgment  for  defendant.  Plaintiff  appealed, 
Per  Curiam  :  The  plaintiff  was  admittedly  the  lowest 
bidder  for  the  erection  of  the  defendant's  building.  It 
does  not  follow,  however,  that  because  he  was  the  lowest 
bidder  the  defendant  was  bound  to  award  him  the  contract. 
The  fact  that,  upon  the  opening  of  the  bids,  either  the 
architect  or  the  defendant  may  have  said  to  the  plaintiff: 
"You  are  the  lucky  man,"  amounts  to  nothing  more  than 
the  recognition  of  the  fact  that  he  was  the  lowest  bidder. 
After  the  bids  had  been  opened,  it  was  the  right  of  the 
defendant  to  inquire  into  the  fitness  and  ability  of  the  re- 
spective bidders  to  fulfill  the  contract.  He  was  not  bound 
to  award  it  to  a  bidder  who  lacked  either  the  skill,  experi- 
ence, or  ability  to  properly  perform  the  contract.  In  this 
case  the  contract  never  was  awarded  to  the  plaintiff.  There 
were  a  number  of  questions  to  be  settled,  when  the  defend- 
ant and  the  bidder  were  brought  together,  before  their  minds 
could  be  said  to  have  agreed  upon  anything. 

The  learned  judge  below  submitted  the  case  to  the  jury 
under  proper  instructions,  and  their  verdict  is  the  end  of 
the  matter. 

Judgment  affirmed. 


36 

Offer  must  be  communicated 

FITCH  v.  SNEDAKER, 

38  N.  Y.  238  (1868). 

Appeal  by  plaintiff  from  a  non-suit. 

Woodruff,  J.:  On  the  14th  of  October,  1859,  the 
defendant  caused  a  notice  to  be  published,  offering  a  reward 
of  two  hundred  dollars  *  *  *  "to  any  person  or  per- 
sons who  will  give  such  information  as  shall  lead  to  the 
apprehension  and  conviction  of  the  person  or  persons  guilty 
of  the  murder"  of  a  certain  unknown  female. 

On  the  15th  day  of  October,  before  the  plaintiffs  had 
seen  or  heard  of  the  offer  of  this  reward,  one  Fee  was 
arrested  and  put  in  jail,  and  though  not  in  terms  so  stated, 
the  case  warrants  the  inference,  that,  by  means  of  the  evi- 
dence given  by  the  plaintiffs  on  his  trial  and  their  efforts  to 
procure  testimony,  Fee  was  convicted. 

This  action  is  brought  to  recover  the  reward  so  offered. 
On  the  trial  the  plaintiffs  proved  the  publication  of  the 
notice,  and  then  proposed  to  prove  that  they  gave  informa- 
tion before  the  notice  was  known  to  them,  which  led  to 
the  arrest  of  Fee.  This  evidence  was  excluded.  The  plain- 
tiffs then  offered  to  prove  that,  with  a  view  to  this  reward, 
they  spent  time  and  money,  made  disclosures  to  the  district 
attorney,  to  the  grand  jury  and  to  the  court  on  the  trial  after 
Fee  was  in  jail,  and  that,  without  their  effort,  evidence  and 
exertion,  no  indictment  or  conviction  could  have  been  held. 
This  evidence  was  excluded.  The  court  thereupon  directed 
a  non-suit. 

It  is  entirely  clear,  that,  in  order  to  entitle  any  person 
to  the  reward  offered  in  this  case,  he  must  give  such  infor- 
mation as  shall  lead  to  both  apprehension  and  conviction. 
That  is,  both  must  happen,  and  happen  as  a  consequence 
of  the  information  given.  No  person  could  claim  the  reward 
whose  information  caused  the  apprehension  until  conviction 
followed ;  both  are  conditions  precedent.  No  one  could 
therefore  claim  the  reward  who  gave  no  information  what- 


37 

ever  until  after  the  apprehension,  although  the  information 
he  afterward  gave  was  the  evidence  upon  which  conviction 
was  had,  and,  however  clear,  that,  had  the  information 
been  concealed  or  suppressed,  there  could  have  been  no 
conviction.  This  is  according  to  the  plain  terms  of  the  offer 
of  the  reward,  and  is  held  in  Jones  v.  The  Phoenix  Bank, 
8  N.  Y.  228;  Thatcher  v.  England,  3  Com.  Bench,  254. 

In  the  last  case  it  was  distinctly  held,  that,  under  an 
offer  of  reward,  payable  "on  recovery  of  property  stolen 
and  conviction  of  the  offender,"  a  person  who  was  active 
in  arresting  the  thief  and  finding  and  restoring  part  of  the 
stolen  property,  giving  information  to  the  magistrates,  trac- 
ing to  London  other  of  the  property  and  producing  pawn- 
brokers with  whom  the  prisoner  had  pledged  it,  and  who 
incurred  much  trouble  and  expense  in  bringing  together 
witnesses  for  the  prosecution,  was  not  entitled  to  the  reward, 
as  it  appeared  that  another  person  gave  the  first  information 
as  to  the  party  committing  the  robbery. 

In  the  present  case,  the  plaintiff  after  the  advertisement 
of  the  defendant's  offer  of  a  reward  came  to  his  knowledge, 
did  nothing  toward  procuring  the  arrest,  nor  which  led 
thereto,  for  at  that  time  Fee  had  already  been  arrested. 

The  cases  above  referred  to,  therefore,  establish  that, 
if  no  information  came  from  the  plaintiffs  which  led  to  the 
arrest  of  Fee,  the  plaintiffs  are  not  entitled  to  recover, 
however  much  the  information  they  subsequently  gave,  and 
the  efforts  they  made  to  procure  evidence,  may  have  con- 
tributed to  or  even  have  caused  his  conviction,  and,  there-, 
fore,  evidence  that  it  was  their  efforts  and  information 
which  led  to  his  conviction  was  wholly  immaterial,  if  they 
did  not  prove  that  they  had  given  information  which  led 
to  his  apprehension,  and  was  properly  rejected. 

The  question  in  this  case  is  simple.  A  murderer  having 
been  arrested  and  imprisoned  in  consequence  of  information 
given  by  the  plaintiff  before  he  is  aware  that    a    reward 


38 

is  offered  for  such  apprehension,  is  he  entitled  to  claim  the 
reward  in  case  conviction  follows? 

The  ruling  on  the  trial,  excluding  all  evidence  of  in- 
formation given  by  the  plaintiffs  before  they  heard  of  this 

reward,  necessarily  answers  this  question  in  the  negative. 

*     *     * 

I  perceive,  however,  no  reason  for  applying  to  an  offer 
of  reward  for  the  apprehension  of  a  criminal  any  other 
rules  than  are  applicable  to  any  other  offer  by  one  accepted 
or  acted  upon  by  another,  and  so  relied  upon  as  constituting 
a  contract. 

The  form  of  action  in  all  such  cases  is  assumpsit.  The 
defendant  is  proceeded  against  as  upon  his  contract  to  pay, 
and  the  first  question  is  was  there  a  contract  between  the 
parties  ? 

To  the  existence  of  a  contract  there  must  be  mutual 
assent,  or  in  another  form  offer  and  consent  to  the  offer. 
The  motive  inducing  consent  may  be  immaterial,  but  the 
consent  is  vital.  Without  that  there  is  no  contract.  How 
then  can  there  be  consent  or  assent  to  that  of  which  the 
party  has  never  heard?  On  the  15th  day  of  October,  1859, 
the  murderer,  Fee,  had  in  consequence  of  information  given 
by  the  plaintiffs,  been  apprehended  and  lodged  in  jail.  But 
the  plaintiffs  did  not,  in  giving  that  information,  manifest 
any  assent  to  the  defendant's  offer,  nor  act  in  any  sense  in 
reliance  thereon,  they  did  not  know  of  its  existence.  The 
information  was  voluntary,  and  in  every  sense  (material 
to  this  case)  gratuitous.  The  offer  could  only  operate  upon 
the  plaintiffs  after  they  heard  of  it.  It  was  prospective  to 
those  who  will,  in  the  future,  give  information,  etc. 

An  offer  cannot  become  a  contract  unless  acted  upon 
or  assented  to. 

Such  is  the  elementary  rule  in  defining  what  is  essen- 
tial to  a  contract.  Chitty  on  Con.  (5th  Am.  ed.),  Perkins' 
notes,  p.  10,  9,  and  2,  and  cases  cited.  Nothing  was  here 
done  to  procure  or  lead  to  Fee's  apprehension  in  view  of 
this  reward.     Indeed,  if  we  were  at  liberty  to  look  at  the 


39 


evidence  on  the  first  trial,  it  would  appear  that  Fee  was 
arrested  before  the  defendant  offered  the  reward. 

I  think  the  evidence  was  properly  excluded  and  the 
non-suit  necessarily  followed. 

Judgment  affirmed. 


A 


Acceptance  must  be  communicated 

ROYAL  INS.  CO.  v.  BEATTY, 

119  Pa.  6  (1888). 

Appeal  from  judgment  for  plaintiff  in  an  action  of  as- 
sumpsit to  recover  upon  two  policies  of  insurance. 

At  the  close  of  the  testimony,  the  defendant  requested 
the  court  to  charge  the  jury:  That  there  was  no  evidence 
of  an  acceptance,  by  the  defendant  of  the  offer  of  the  plain- 
tiff to  renew  the  policies,  and  the  verdict  of  the  jury  must 
be  for  the  defendant.  The  court  refused  to  affirm  this 
point,  and  submitted  the  cause  upon  the  evidence,  and  there 
was  a  verdict  for  plaintiff. 

Green,  J. :  We  find  ourselves  unable  to  discover  any 
evidence  of  a  contractual  relation  between  the  parties  to 
this  litigation.  The  contract  alleged  to  exist  was  not  found- 
ed upon  any  writing,  nor  upon  any  words,  nor  upon  any 
act  done  by  the  defendant.  It  was  founded  alone  upon 
silence.  While  it  must  be  conceded  that  circumstances  may 
exist  which  will  impose  a  contractual  obligation  by  mere 
silence,  yet  it  must  be  admitted  that  such  circumstances 
are  exceptional  in  their  character  and  of  extremely  rare 
occurrence.  We  have  not  been  furnished  with  a  perfect 
instance  of  the  kind  by  the  counsel  on  either  side  of  the 
present  case.  Those  cited  for  defendant  in  error  had  some 
other  element  in  them  than  mere  silence,  which  contributed 
to  the  establishment  of  the  relation. 

But  in  any  point  of  view  it  is  difficult  to  understand 
how  a  legal  liability  can  arise  out  of  the  mere  silence  of 


40 

the  party  sought  to  be  affected,  unless  he  was  subject  to 
a  duty  of  speech,  which  was  neglected  to  the  harm  of  the 
other  party.  If  there  was  no  duty  of  speech,  there  could 
be  no  harmful  omission  arising  from  mere  silence.  Take 
the  present  case  as  an  illustration.  The  alleged  contract 
was  a  contract  of  fire  insurance.  The  plaintiff  held  two 
policies  against  the  defendant,  but  they  had  expired  before 
the  loss  occurred  and  had  not  formally  been  renewed. 
At  the  time  of  the  fire,  the  plaintiff  held  no  policy  against 
the  defendant.  But  he  claims  that  the  defendant  agreed  to 
continue  the  operation  of  the  expired  policies  by  what  he 
calls  "binding"  them.  How  does  he  prove  this?  He  calls 
a  clerk,  who  took  the  two  policies  in  question,  along  with 
other  policies  of  another  person,  to  the  agent  of  the  de- 
fendant to  have  them  renewed,  and  this  is  the  account  he 
gives  of  what  took  place:  "The  Royal  Company  had  some 
policies  to  be  renewed,  and  I  went  in  and  bound  them.  Q. 
State  what  was  said  and  done.  A.  I  went  into  the  office 
of  the  Royal  Company  and  asked  them  to  bind  the  two 
policies  of  Mr.  Beatty  expiring  to-morrow.  The  Court: 
Who  were  the  policies  for?  A.  Mr.  Beatty.  The  Court: 
That  is  your  name,  is  it  not?  A.  Yes,  sir.  These  were  the 
policies  in  question.  I  renewed  the  policies  of  Mr.  Priestly 
up  to  the  1st  of  April.  There  was  nothing  more  said  about 
the  Beatty  policies  at  that  time.  The  Court :  What  did  they 
say?  A.  They  did  not  say  anything,  but  I  suppose  that 
they  went  to  their  books  to  do  it.  They  commenced  to 
talk  about  the  night  privilege,  and  that  was  the  only  sub- 
ject discussed."  In  his  further  examination  he  was  asked: 
"Q.  Did  you  say  anything  about  those  policies  (Robert 
Beatty's)  at  that  time?  A.  No,  sir;  I  only  spoke  of  the 
two  policies  for  William  Beatty.  Q.  What  did  you  say  about 
them?  A.  I  went  in  and  said,  'Mr.  Skinner,  will.you  renew 
the  Beatty  policies  and  the  night  privilege  for  Mr.  Priest- 
ly,' and  that  ended  it.  Q.  Were  the  other  companies  bound 
in  the  same  way?  A.  Yes,  sir;  and  I  asked  the  Royal  Com- 
pany to  bind  Mr.  Beatty." 


41 

The  foregoing  is  the  whole  of  the  testimony  for  the 
plaintiff  as  to  what  was  actually  said  at  the  time  when  it 
is  alleged  the  policies  were  bound.  It  will  be  perceived 
that  all  that  the  witness  says  is,  that  he  asked  the  defend- 
ant's agent  to  bind  the  two  policies,  as  he  states  at  first,  or 
to  renew  them,  as  he  says  last.  He  received  no  answer, 
nothing  was  said,  nor  was  anything  done.  How  is  .it  pos- 
sible to  make  a  contract  out  of  this?  It  is  not  as  if  one 
declares  or  states  a  fact  in  the  presence  of  another  and 
the  other  is  silent.  If  the  declaration  imposed  a  duty  of 
speech  on  peril  of  an  inference  from  silence,  the  fact  of  si- 
lence might  justify  the  inference  of  an  admission  of  the 
truth  of  the  declared  fact.  It  would  then  be  only  a  ques- 
tion of  hearing,  which  would  be  chiefly  if  not  entirely  for 
the  jury.  But  here  the  utterance  was  a  question  and  not 
an  assertion,  and  there  was  no  answer  to  the  question. 
Instead  of  silence  being  evidence  of  an  agreement  to  do  the 
thing  requested,  it  is  evidence,  either  that  the  question  was 
not  heard  or  that  it  was  not  intended  to  comply  with  the 
request.  Especially  is  this  the  case,  when,  if  a  compliance 
was  intended,  the  request  would  have  been  followed  by  an 
actual  doing  of  the  things  requested.  But  this  was  not  done ; 
how  then  can  it  be  said  it  was  agreed  to  be  done?  There 
is  literally  nothing  upon  which  to  base  the  inference  of  an 
agreement,  upon  such  a  state  of  facts.  Hence  the  matter 
is  for  the  Court  and  not  for  the  jury;  for  if  there  may  not 
be  an  inference  of  the  controverted  fact,  the  jury  must  not 
be  permitted  to  make  it. 

What  has  thus  far  been  said  relates  only  to  the  effect 
of  the  non-action  of  the  defendant,  either  in  responding 
or  in  doing  the  thing  requested.  There  remains  for  con- 
sideration the  effect  of  the  plaintiff's  non-action.  When  he 
asked  the  question  whether  defendant  would  bind  or  renew 
the  policies  and  obtained  no  answer,  what  was  his  duty? 
Undoubtedly,  to  repeat  his  question  until  he  obtained  an 
answer.  For  his  request  was  that  the  defendant  should 
nake  a  contract  with  nim.  and  the  defendant  says  noth- 


42 

ing.  Certainly  such  silence  is  not  an  assent  in  any  sense. 
There  should  be  something  done,  or  else  something  said 
before  it  is  possible  to  assume  that  a  contract  was  estab- 
lished. There  being  nothing  done  and  nothing  said,  there  is 
no  footing  upon  which  an  inference  of  an  agreement  can 
stand.  But  what  was  the  position  of  the  plaintiff?  He  had 
asked  the  defendant  to  make  a  contract  with  him  and  the 
defendant  had  not  agreed  to  do  so ;  he  had  not  even  an- 
swered the  question  whether  he  would  do  so.  The  plaintiff 
knew  he  had  obtained  no  answer,  but  he  does  not  repeat 
the  question ;  he,  too,  is  silent  thereafter,  and  he  does  not 
get  the  thing  done  which  he  asks  to  be  done.  Assuredly  it 
was  his  duty  to  speak  again,  and  to  take  further  action  if 
he  really  intended  to  obtain  the  defendant's  assent  For 
what  he  wanted  was  something  affirmative  and  positive,  and 
without  it  he  has  no  status.  But  he  desists,  and  says  noth- 
ing further.  And  so  it  is  that  the  whole  of  the  plaintiff's 
case  is  an  unanswered  request  to  the  defendant  to  make  a 
contract  with  the  plaintiff,  and  no  further  actual  attempt 
by  the  plaintiff  to  obtain  an  answer,  and  no  actual  contract 
made.  Out  of  such  facts  it  is  not  possible  to  make  a  legal 
inference  of  a  contract. 

The  other  facts  proved  and  offered  to  be  proved,  but 
rejected  improperly,  as  we  think,  and  supposed  by  each  to 
be  consistent  with  his  theory,  tend  much  more  strongly  in 
favor  of  the  defendant's  theory  than  of  the  plaintiff's.  It 
is  not  necessary  to  discuss  them,  since  the  other  views  we 
have  expressed  are  fatal  to  the  plaintiff's  claim.  Nor  do  I 
concede  that  if  defendant  heard  plaintiff's  request  and  made 
no  answer,  an  inference  of  assent  should  be  made.  For  the 
hearing  of  a  request,  and  not  answering  it  is  as  consist- 
ent, indeed  more  consistent,  with  a  dissent  than  an  assent. 
If  one  is  asked  for  alms  on  the  street,  and  hears  the  re- 
quest, but  makes  no  answer,  it  certainly  cannot  be  inferred 
that  he  intends  to  give  them.  In  the  present  case  there  is 
no  evidence  that  defendant  heard  the  plaintiff's  request, 
and  without  hearing  there  was,  of  course,  no  duty  of  speech. 
Judgment  reversed. 


43    v 

What  amounts  to  communication  of  acceptance — 
Constructive  acceptance 

TAYLOE  v.  MERCHANTS'  FIRE  INS.  CO. 

9  Howard  (U.  S.)  390  (1850.) 

Nelson,  J. :  This  is  an  appeal  from  a  decree  of  the 
Circuit  Court  for  the  District  of  Maryland,  which  was  ren- 
dered for  the  defendants. 

The  case  in  the  court  below  was  this :  William  H. 
Tayloe,  of  Richmond  County,  Virginia,  applied  to  John 
Minor,  the  agent  of  the  defendants,  residing  at  Fredericks- 
burg in  that  State,  for  an  insurance  upon  his  dwelling  house 
to  the  amount  of  $8,000  for  one  year,  and,  as  he  was  about 
leaving  home  for  the  State  of  Alabama,  desired  the  agent  to 
make  the  application  in  his  behalf. 

The  application  was  made  accordingly,  under  the  date 
of  25th  November,  1844,  and  an  answer  received  from  the 
secretary  of  the  company,  stating  that  the  risk  would  be 
taken  at  seventy  cents  on  the  thousand  dollars,  the  premium 
amounting  to  the  sum  of  $56.  The  agent  stated  in  the  ap- 
plication to  the  company  the  reason  why  it  had  not  been 
signed  by  Tayloe ;  that  he  had  gone  to  the  State  of  Alabama 
on  business  and  would  not  return  till  February  following; 
and  that  he  was  desired  to  communicate  to  him  at  that  place 
the  answer  of  the  company. 

On  receiving  the  answer,  the  agent  mailed  a  letter  di- 
rected to  Tayloe,  under  date  of  the  2d  of  December,  advis- 
ing him  of  the  terms  of  the  insurance,  and  adding,  "Should 
you  desire  to  effect  the  insurance,  send  me  your  check  pay- 
able to  my  order  for  $57,  and  the  business  is  concluded." 
The  additional  dollar  was  added  for  the  policy. 

This  letter,  in  consequence  of  a  misdirection,  did  not 
reach  Tayloe  till  the  20th  of  the  month;  who,  on  the  next 
day,  mailed  a  letter  in  answer  to  the  agent,  expressing  his 
assent  to  the  terms,  and  inclosing  his  check  for  the  premium 
as  requested.  He  also  desired  that  the  policy  should  be  de- 
posited in  the  bank  for  safe-keeping.    This  letter  of  accept- 


44 

ance  was  received  on  the  31st  at  Fredericksburg  by  the 
agent,  who  mailed  the  letter  in  answer  the  next  day,  com- 
municating to  Tayloe  his  refusal  to  carry  into  effect  the  in- 
surance, on  the  ground  that  his  acceptance  came  too  late, 
the  centre  building  of  the  dwelling  house  in  the  meantime 
on  the  22d  of  the  month,  having  been  consumed  by  fire. 

The  company,  on  being  advised  of  the  facts,  confirmed 
the  view  taken  of  the  case  by  their  agent,  and  refused  to 
issue  the  policy  or  pay  the  loss. 

A  bill  was  filed  in  the  court  below  by  the  insured  against 
the  company,  setting  forth,  substantially,  the  above  facts,  and 
praying  that  the  defendants  might  be  decreed  to  pay  the  loss, 
or  for  such  other  relief  as  the  complainant  might  be  entitled 
to. 

I.  Several  objections  have  been  taken  to  the  right  of 
the  complainant  to  recover,  which  it  will  be  necessary  to 
notice ;  but  the  principal  one,  is  that  the  contract  of  insur- 
ance was  not  complete  at  the  time  the  loss  happened,  and 
therefore  that  the  risk  proposed  to  be  assumed  had  never 
attached. 

Two  positions  have  been  taken  by  the  counsel  for  the 
company  for  the  purpose  of  establishing  this  ground  of 
defense. 

1.  The  want  of  notice  to  the  agent  of  the  company  of 
the  acceptance  of  the  terms  of  the  insurance ;  and, 

2.  The  non-payment  of  the  premium. 

The  first  position  assumes  that,  where  the  company 
have  made  an  offer  through  the  mail  to  insure  upon  certain 
terms,  the  agreement  is  not  consummated  by  the  mere  ac- 
ceptance of  the  offer  by  the  party  to  whom  it  is  addressed ; 
that  the  contract  is  still  open  and  incomplete  until  the  no- 
tice of  acceptance  is  received ;  and  that  the  company  are  at 
liberty  to  withdraw  the  offer  at  any  time  before  the  arrival 
of  the  notice ;  and  this  even  without  communicating  notice 
of  the  withdrawal  to  the  applicant;  in  other  words,  that 
the  assent  of  the  company,  expressed  or  implied,  after  the 


45 

acceptance  of  the  terms  proposed  by  the  insured,  is  essen- 
tial to  a  consummation  of  the  contract. 

The  effect  of  this  construction  is,  to  leave  the  property 
of  the  insured  uncovered  until  his  acceptance  of  the  offer 
has  reached  the  company,  and  has  received  their  assent ;  for, 
if  the  contract  is  incomplete,  until  notice  of  the  acceptance, 
till  then  the  company  may  retract  the  offer,  as  neither  party 
is  bound  until  the  negotiation  has  resulted  in  a  complete 
bargain  between  the  parties. 

In  our  apprehension,  this  view  of  the  transaction  is 
not  in  accordance  with  the  usages  and  practice  of  these 
companies  in  taking  risks;  nor  with  the  understanding  of 
merchants  and  other  business  men  dealing  with  them;  nor 
with  the  principles  of  law,  settled  in  analogous  cases,  gov- 
erning contracts  entered  into  by  correspondence  between 
parties  residing  at  a  distance. 

On  the  contrary,  we  are  of  the  opinion  that  an  offer 
under  the  circumstances  stated,  prescribing  the  terms  of 
insurance,  is  intended,  and  is  to  be  deemed,  a  valid  under- 
taking on  the  part  of  the  company,  that  they  will  be  bound, 
according  to  the  terms  tendered,  if  an  answer  is  transmitted 
in  due  course  of  mail,  accepting  them ;  and  that  it  cannot 
be  withdrawn,  unless  the  withdrawal  reaches  the  party  to 
whom  it  is  addressed  before  his  letter  of  reply  announcing 
the  acceptance  has  been  transmitted. 

This  view  to  the  effect  of  the  correspondence  seems 
to  us  to  be  but  carrying  out  the  intent  of  the  parties,  as 
plainly  manifested  by  their  acts  and  declarations. 

On  the  acceptance  of  the  terms  proposed,  transmitted 
by  due  course  of  mail,  to  the  company,  the  minds  of  both 
parties  have  met  on  the  subject,  in  the  mode  contemplated  at 
the  time  of  entering  upon  the  negotiation,  and  the  contract 
becomes  complete.  The  party  to  whom  the  proposal  is 
addressed  has  a  right  to  regard  it  as  intended  as  a  contin- 
uing offer  until  it  shall  have  reached  him,  and  shall  be  in  due 
time  accepted  or  rejected. 


46 

Such  is  the  plain  import  of  the  offer.  And,  besides, 
upon  any  other  view,  the  proposal  amounts  to  nothing,  as 
the  acceptance  would  be  but  the  adoption  of  the  terms 
tendered,  to  be,  in  turn,  proposed  by  the  applicant  to  the 
company  for  their  approval  or  rejection.  For,  if  the  con- 
tract is  still  open  until  the  company  is  advised  of  an  accept- 
ance, it  follows,  of  course,  that  the  acceptance  may  be 
repudiated  at  any  time  before  the  notice  is  received.  Noth- 
ing is  effectually  accomplished  by  an  act  of  acceptance. 

It  is  apparent,  therefore,  that  such  an  interpretation  of 
the  acts  of  the  parties  would  defeat  the  object  which  both 
had  in  view  in  entering  upon  the  correspondence. 

The  fallacy  of  the  argument,  in  our  judgment,  con- 
sists in  the  assumption,  that  the  contract  cannot  be  consum- 
mated without  a  knowledge  on  the  part  of  the  company  that 
the  offer  has  been  accepted.  This  is  the  point  of  the  objec- 
tion. But  a  little  reflection  will  show,  that  in  all  cases  of 
contracts  entered  into  between  parties  at  a  distance  by 
correspondence,  it  is  impossible  that  both  should  have  a 
knowledge  of  it  the  moment  it  becomes  complete.  This  can 
only  exist  where  both  parties  are  present. 

The  position  may  be  illustrated  by  the  case  before  us. 
If  the  contract  become  complete,  as  we  think  it  did,  on  the 
acceptance  of  the  offer  by  the  applicant,  on  the  21st  of  De- 
cember, 1844,  the  company,  of  course,  could  have  no  knowl- 
edge of  it  until  the  letter  of  acceptance  reached  the  agent, 
on  the  31st  of  the  month;  and,  on  the  other  hand,  upon  the 
hypothesis  it  was  not  complete  until  notice  of  the  acceptance, 
and  then  became  so,  the  applicant  could  have  no  knowledge 
of  it  at  the  time  it  took  effect.  In  either  aspect,  and  indeed, 
in  any  respect  in  which  the  case  can  be  presented,  one  of  the 
parties  must  be  unadvised  of  the  time  when  the  contract 
takes  effect,  as  its  consummation  must  depend  upon  the  act 
of  one  of  them  in  the  absence  of  the  other. 

The  negotiation  being  carried  on  through  the  mail,  the 
offer  and  acceptance  cannot  occur  at  the  same  moment 
of  time;  nor,  for  the  same  reason,  can  the  meeting  of  the 


47 

minds  of  the  parties  on  the  subject  be  known  by  each  at  the 
moment  of  concurrence ;  the  acceptance  must  succeed  the 
offer  after  the  lapse  of  some  interval  of  time;  and  if  the 
process  is  to  be  carried  farther  in  order  to  complete  the  bar- 
gain, and  notice  of  the  acceptance  must  be  received,  the  only 
effect  is  to  reverse  the  position  of  the  parties,  changing  the 
knowledge  of  the  completion  from  the  one  party  to  the 
other. 

It  is  obviously  impossible,  therefore,  under  the  circum- 
stances stated,  ever  to  perfect  a  contract  by  correspondence, 
if  a  knowledge  of  both  parties  at  the  moment  they  become 
bound  is  an  essential  element  in  making  out  the  obligation. 
And  as  it  must  take  effect,  if  effect  is  given  at  all  to  an 
endeavor  to  enter  into  a  contract  by  correspondence,  in  the 
absence  of  the  knowledge  of  one  of  the  parties  at  the  time 
of  its  consummation,  it  seems  to  us  more  consistent  with 
the  acts  and  declarations  of  the  parties,  to  consider  it  com- 
plete on  the  transmission  of  the  acceptance  of  the  offer  in 
the  way  they  themselves  contemplated  ;  instead  of  postponing 
its  completion  till  notice  of  such  acceptance  has  been  received 
and  assented  to  by  the  company. 

For  why  make  the  offer,  unless  intended  that  an  as- 
sent to  its  terms  should  bind  them?  And  why  require  any 
further  assent  on  their  part,  after  an  unconditional  accept- 
ance by  the  party  to  whom  it  is  addressed? 

We  have  said  that  this  view  is  in  accordance  with  the 
usages  and  practice  of  these  companies,  as  well  as  with 
the  general  principles  of  law  governing  contracts  entered 
into  by  absent  parties. 

In  the  instructions  of  this  company  to  their  agent  at 
Fredericksburg,  he  is  advised  to  transmit  all  applications 
for  insurance  to  the  office  for  consideration ;  and  that,  upon 
the  receipt  of  an  answer,  if  the  applicant  accepts  the  terms, 
the  contract  is  considered  complete  without  waiting  to  com- 
municate the  acceptance  to  the  company ;  and  the  policy  to 
be  thereafter  issued  is  to  bear  date  from  the  time  of  the 
acceptance. 


48 

The  company  desire  no  further  communication  on  the 
subject,  after  they  have  settled  upon  the  terms  of  the  risk, 
and  sent  them  for  the  inspection  of  the  applicant,  in  order 
to  consummate  the  bargain.  The  communication  of  the 
acceptance  by  the  agent  afterwards  is  to  enable  them  to 
make  out  the  policy.  The  contract  is  regarded  as  complete 
on  the  acceptance  of  the  terms. 

This  appears,  also,  to  have  been  the  understanding  of 
the  agent;  for,  on  communicating  to  the  insured  the  terms 
received  from  the  company,  he  observes,  "Should  you  desire 
to  effect  the  above  insurance,  send  me  your  check  payable 
to  my  order  for  fifty-seven  dollars,  and  the  business  is  con- 
cluded ;"  obviously  enough  importing,  that  no  other  step 
would  be  necessary  to  give  effect  to  the  insurance  of  the 
property  upon  the  terms  stated. 

The  cases  of  Adams  v.  Lindsell  (V.  Barn.  &  Aid.  681) 
and  Mactier's  Adm'rs.  v.  Frith  (16  Wend.  104)  are  authori- 
ties to  show  that  the  above  view  is  in  conformity  with  the 
general  principles  of  law  governing  the  formation  of  all  con- 
tracts entered  into  between  parties  residing  at  a  distance  by 
means  of  correspondence. 

The  unqualified  acceptance  by  the  one  of  the  terms 
proposed  by  the  other,  transmitted  by  due  course  of  mail,  is 
regarded  as  closing  the  bargain  from  the  time  of  the  trans- 
mission of  the  acceptance. 

This  is  also  the  effect  of  the  case  of  Eliason  v.  Hen- 
shaw  (4  Wheat.  228)  in  this  court,  though  the  point  was  not 
necessarily  involved  in  the  decision  of  the  case.  The  accept- 
ance there  had  not  been  according  to  the  terms  of  the  bar- 
gain proposed,  for  which  reason  the  plaintiff  failed. 

II.  The  next  position  against  the  claim  is  the  non- 
payment of  the  premium.     *     *     * 

Decree  reversed. 


Editor's  Note. — "The  mere  determination  to  accept  an  offer 
does  not  constitute  an  acceptance  which  is  binding  on  the  parties. 
The  assent  must  either  be  communicated  to  the  other  party  or  some 
act  must  have  been  done  which  the  other  party  has  expressly  or 
impliedly  offered  to  treat  as  a  communication.     Where  parties  ztt- 


49  X 

Acceptance  must  not  vary  from  terms  of  offer 
.       JENNESS  v.  MT.  HOPE  IRON  CO., 
53  Maine  20  (1864). 

Case  submitted  to  Supreme  Court  for  opinion.  As- 
sun^psit  for  alleged  breach  of  contract. 

Walton,  J. :  The  negotiation  was  carried  on  by  letters 
as  follows : 

Plaintiff— October  20,  1862,  "What  will  you  sell  me  kegs  of 
nails  for,  delivered  at  Bangor,  in  the  course  of  a  month,  cash 
down?" 

Defendants— Octoeer  23,  1862,  "We  will  sell  you  450  casks 
common  assorted  nails,  delivered  on  the  dock  at  Bangor  at  $3.62 
per  keg  of  100  lbs.  each,  cash." 

Plaintiff— October  27,  1862,  "Nails  have  advanced  so  much 
I  am  almost  afraid  to  buy,  but  you  will  send  me  as  soon  as  possible, 
303  kegs  (naming  the  kinds),  and  I  will  send  you  a  check  on  Ex- 
change Bank  of  Boston." 

Plaintiff — November  11,  1862,  "Not  having  heard  whether  you 
have  shipped  the  nails  ordered,  I  thought  I  would  write  you  as  we 
shall  have  but  a  few  weeks  more  of  navigation." 

Defendants—  November  14,  1862,  "It  will  not  be  possible  for 
us  to  get  out  the  nails  you  have  ordered  this  month,  as  previous 
orders  must  take  precedence.  It  is  next  to  impossible  for  us  to 
get  out  nails  enough  to  supply  our  back  orders,  and  we  thought  it 
best  to  write  you,  as  navigation  may  be  closed  too  soon  for  us  to 
forward  them  this  fall.  We  will,  however,  do  our  best  to  satisfy 
all  our  customers,  and  your  order  shall  receive  attention  when  we 
get  to  it." 

This  is  the  whole  substances  of  the  written  correspond- 
ence between  these  parties,  and  we  look  in  vain  to  find  in  it 
evidence  of  a  contract  completed;  a  proposition  by  one 
party,  accepted  without  modification  by  the  other.  The  de- 
fendants offered  to  deliver  450  casks  at  $3.62  per  cask ;  but 


distant  from  each  other  and  the  contract  is  to  be  made  by  corre- 
spondence, the  writing  of  a  letter  or  telegram  containing  a  notice 
of  acceptance,  is  not  of  itself  sufficient  to  complete  the  contract.  In 
such  a  case  the  act  must  involve  an  irrevocable  element  and  the  let- 
ter must  be  placed  in  the  mail  or  the  telegram  deposited  in  the  office 
for  transmission,  and  thus  placed  beyond  the  power  or  control  of 
the  sender  before  the  assent  becomes  effectual  to  consummate  a 
contract,  and  not  then  unless  the  offer  is  still  standing. — Troutsline 
&  Co.  v.  Sellers,  35  Kan.  447. 

A  United  States  mail  box  at  a  street  corner,  or  a  mail  chute,  is 
a  post-office  within  the  meaning  of  the  above  cases. — Wood  v. 
Callaghan,  61  Mich.  402, 


50 

this  offer  was  not  accepted  by  the  plaintiff  ;  and  his  offer  for 
303  casks  does  not  appear  to  have  been  accepted  by  the 
defendants.  We  look  in  vain  for  a  distinct  proposition  by 
either  party,  which  is  accepted  without  modification  by  the 
other.  To  constitute  a  contract,  there  must  be  a  proposi- 
tion by  one  party,  accepted  by  the  other  without  any  modifi- 
cation whatever.  If  the  acceptance  modifies  the  proposi- 
tion in  any  particular,  however  trifling,  it  amounts  to  no 
more  than  a  counter  proposition.  It  is  not  in  law  an  ac- 
ceptance which  will  complete  the  contract.  The  letters  be- 
tween these  parties  failed  therefore  to  establish  a  prima 
facie  case  for  the  plaintiff. 
Non-suit  ordered. 


Acceptance  by  act 

DAY  v.  CATON, 

119  Mass.  513  (1875). 

Appeal  from  a  judgment  for  plaintiff. 

Action  on  a  contract  to  recover  value  of  one-half  of 
brick  party  wall  built  by  the  plaintiff  upon  and  between  the 
adjoining  estates  27  and  29  Greenwich  Park,  Boston.  *  *  * 
The  plaintiff  had  an  equitable  interest  in  lot  29.  The  plain- 
tiff testified  that  there  was  an  express  agreement  on  the 
defendant's  part  to  pay  him  one-half  the  value  of  the  wall 
when  the  defendant  should  use  it  in  building  upon  lot  27. 
The  defendant  denied  this,  and  testified  that  he  never  had 
any  conversation  w7ith  the  plaintiff  about  the  wall ;  and  there 
was  no  other  direct  testimony  on  this  point.  The  judge 
instructed  the  jury  as  follows :  "A  promise  would  not  be 
implied  from  the  fact  that  the  plaintiff  with  the  defendant's 
knowledge  built  the  wall,  and  the  defendant  used  it,  but  it 
might  be  implied  from  the  conduct  of  the  parties.  If  the 
jury  find  that  the  plaintiff  undertook  and  completed  the 


51 

building  of  the  wall  with  the  expectation  that  the  defendant 
would  pay  him  for  it,  and  the  defendant  had  reason  to 
know  that  the  plaintiff  was  so  acting  with  that  expectation, 
and  allowed  him  so  to  act  without  objection,  then  the  jury 
might  infer  a  promise  on  the  part  of  the  defendant  to  pay 
the  plaintiff."  The  jury  found  for  the  plaintiff.  The  de- 
fendant excepted. 

Devens,  J. :  The  ruling  that  a  promise  to  pay  for 
the  wall  would  not  be  implied  from  the  fact  that  the  plain- 
tiff with  the  defendant's  knowledge,  built  the  wall,  and  that 
the  defendant  used  it,  is  conceded  to  have  been  correct. 
*  *  *  The  fact  that  the  plaintiff  expected  to  be  paid 
for  the  work  would  certainly  not  be  sufficient  of  itself  to 
establish  the  existence  of  a  contract,  when  the  question 
between  the  parties  was  whether  one  was  made.  Taft  v. 
Dickinson,  6  Allen  553.  It  must  be  shown  that,  in  some 
manner,  the  party  sought  to  be  charged  assented  to  it.  If 
a  party,  however,  voluntarily  accepts  and  avails  himself  of 
valuable  services  rendered  for  his  benefit,  when  he  has  the 
option  whether  to  accept  or  reject  them,  even  if  there  is 
no  distinct  proof  that  they  were  rendered  by  his  authority  of 
request,  a  promise  to  pay  for  them  may  be  inferred.  His 
knowledge  that  they  were  valuable  and  his  exercise  of  the 
option  to  avail  himself  of  them,  justified  this  inference. 
Abbott  v.  Herman,  7  Greenl.  118,  and  when  one  stands  by 
in  silence  and  sees  valuable  services  rendered  upon  his  real 
estate  by  the  erection  of  a  structure  (of  which  he  must 
necessarily  avail  himself  afterwards  in  his  proper  use 
thereof),  such  silence,  accompanied  with  the  knowledge  on 
his  part  that  the  party  rendering  the  services  expects  pay- 
ment therefor,  may  fairly  be  treated  as  evidence  of  an  ac- 
ceptance of  it,  and  as  tending  to  show  an  agreement  to  pay 
for  it.  The  maxim,  Qui  tacet  consentire  videtur,  is  to 
be  construed  indeed  as  applying  only  to  those  cases  where 
the  circumstances  are  such  that  a  party  is  fairly  called  upon 
either  to  deny  or  admit  his  liability.  But  if  silence  may  be 
interpreted  as  assent  where  a  proposition  is  made  to  one 


52 

which  he  is  bound  to  deny  or  admit,  so  also  it  may  be  if  he 
is  silent  in  the  face  of  facts  which  fairly  call  upon  him  to 
speak.  Lamb  v.  Bunce,  4  M.  &  S.  275.  If  a  person  saw 
day  after  day  a  laborer  at  work  in  his  field  doing  services, 
which  must  of  necessity  inure  to  his  benefit,  knowing  that 
the  laborer  expected  pay  for  his  work,  when  it  was  per- 
fectly easy  to  notify  him  if  his  services  were  not  wanted, 
even  if  a  request  were  not  expressly  proved,  such  a  request 
either  previous  to  or  contemporaneous  with  the  performance 
of  the  services,  might  fairly  be  inferred.  But  if  the  fact 
was  merely  brought  to  his  attention  upon  a  single  occasion, 
and  casually,  if  he  had  little  opportunity  to  notify  the 
other  that  he  did  not  desire  the  work,  and  should  not  pay 
for  it,  or  could  only  do  so  at  the  expense  of  much  time 
and  trouble,  the  same  inference  might  not  be  made.  The 
circumstances  of  each  case  would  necessarily  determine 
whether  silence  with  a  knowledge  that  another  was  doing 
valuable  work  for  his  benefit,  and  with  the  expectation  of 
payment,  indicated  that  consent  which  would  give  rise  to 
the  inference  of  a  contract.  The  question  would  be  one  for 
the  jury,  and  to  them  it  was  properly  submitted  in  the  case 
before  us  by  the  presiding  judge. 
Exceptions  overruled. 


Right  to  revoke  an  offer  before  acceptance 

FISHER  v.  SELTZER, 

23  Pa.  308  (1854). 

Appeal  by  plaintiff  from  judgment  for  plaintiff. 

Action  by  Fisher,  late  sheriff,  to  recover  from  Seltzer 
the  difference  between  the  amount  bid  at  a  sale  of  prop- 
erty and  the  amount  realized  at  a  second  sale,  with  costs, 
etc.  The  sheriff,  before  the  sale,  had  prescribed  certain 
rules  or  conditions,  among  which  were  that  "no  person 


53 

shall  retract  his  or  her  bid,"  and  that  if  a  bidder  failed  to 
comply  with  all  conditions  of  the  sale,  "he  shall  pay  all 
costs  and  charges."  At  the  sale  Seltzer  bid  seven  thousand 
dollars,  under  the  belief  that  the  property  was  to  be  sold 
free  of  a  certain  mortgage  for  six  thousand  dollars.  Dis- 
covering his  error,  he  retracted  his  bid  before  it  was  ac- 
cepted, but  the  sheriff,  denying  this  right  of  retraction, 
knocked  down  the  property  to  him.  He  refused  to  take  it. 
On  a  resale  it  brought  only  one  thousand  five  hundred  dol- 
lars. Judgment  was  entered  for  plaintiff  for  the  costs  of 
the  second  sale  only.  Plaintiff  prosecuted  a  writ  of  error. 
Lewis,  J. :  Mutuality  is  so  essential  to  the  validity  of 
contracts  not  under  seal,  that  they  cannot  exist  without  it. 
A  bid  at  auction,  before  the  hammer  falls,  is  like  an  offer 
before  acceptance.  In  such  a  case  there  is  no  contract,  and 
the  bid  may  be  withdrawn  without  liability  or  injury  to 
any  one.  The  brief  interval  between  the  bid  and  its  ac- 
ceptance is  the  reasonable  time  which  the  law  allows  for 
inquiry,  consideration,  correction  of  mistakes,  and  retrac- 
tion. This  privilege  is  of  vital  importance  in  sheriff's  sales, 
where  the  rule  of  caveat  emptor  operates  with  all  its  vigor. 
It  is  necessary,  in  order  that  bidders  may  not  be  entrapped 
into  liabilities  never  intended.  Without  it,  prudent  persons 
would  be  discouraged  from  attending  these  sales.  It  is 
the  policy  of  the  law  to  promote  competition,  and  thus  to 
produce  the  highest  and  best  price  which  can  be  ob- 
tained. The  interests  of  debtors  and  creditors  are  thus 
promoted.  By  the  opposite  course,  a  creditor  might  oc- 
casionally gain  an  advantage,  but  an  innocent  man  would 
suffer  unjustly,  and  the  general  result  would  be  disastrous. 
A  bidder  at  sheriff's  sale  has  a  right  to  withdraw  his  bid 
at  any  time  before  the  property  is  struck  down  to  him,  and 
the  sheriff  has  no  authority  to  prescribe  conditions  which 
deprive  him  of  that  right.  Where  the  bid  is  thus  with- 
drawn before  acceptance,  there  is  no  contract,  and  such  a 
bidder  cannot,  in  any  sense,  be  regarded  as  a  "purchaser." 
He  is,  therefore,  not  liable  for  "the  costs  and  charges"  of 


54 

a  second  sale.  Where  there  has  been  no  sale,  there  can  be 
no  resale. 

The  judgment  ought  not  to  have  been  in  favor  of  the 
plaintiff,  even  for  "the  costs  and  charges"  of  the  second 
sale;  but  as  the  defendant  does  not  complain,  we  do  not 
disturb  it. 

Judgment  affirmed. 


Effect  of  option  on  right  to  revoke  offer 

COLEMAN  v.  APPLEGARTH, 

68  Md.  21  (1887). 

Appeal  from  decree  dismissing  bill  in  equity. 

Alvey,  C.J.  Coleman,  the  appellant,  filed  his  bill  against 
Applegarth  and  Bradley,  the  appellees,  for  a  specific  per- 
formance of  what  is  alleged  to  be  a  contract  made  by  Apple- 
garth  with  Coleman  for  the  sale  of  a  lot  of  ground  in  the 
city  of  Baltimore.  The  contract  upon  which  the  application 
is  made,  and  which  is  sought  to  be  specifically  enforced, 
reads  thus : 

"For  and  in  consideration  of  the  sum  of  five  dollars,  paid 
me,  I  do  hereby  give  to  Charles  Coleman  the  option  of  purchasing 
my  lot  of  ground,  northwest  corner,  etc.,  assigned  to  me  by  Wright 
and  McDermot,  by  deed  dated,  etc.,  subject  to  the  ground  rent 
therein  mentioned,  at  and  for  the  sum  of  $645  cash,  at  any  time 
on  or  before  the  first  day  of  November,  1886." 

It  was  dated  the  3d  of  September,  1886,  and  signed  by 
Applegarth  alone. 

The  plaintiff,  Coleman,  did  not  exercise  his  option  to 
purchase  within  the  time  specified  in  the  contract;  but  he 
alleges  in  his  bill  that  Applegarth,  after  making  the  contract 
of  the  3d  of  September,  1886,  and  before  the  expiration  of 
the  time  limited  for  the  exercise  of  the  option,  verbally 
agreed  with  the  plaintiff  to  extend  the  time  for  the  exer- 
cise of  such  option  to  the  1st  of  December,  1886.    It  is  fur- 


ther  alleged  that,  about  the  9th  of  November,  1886,  without 
notice  to  the  plaintiff,  Applegarth  sold,  and  assigned  by 
deed,  the  lot  of  ground  to  Bradley,  for  the  consideration  of 
$700;  and  that  subsequently,  but  prior  to  the  1st  of  Decem- 
ber, 1886,  the  plaintiff  tendered  to  Applegarth,  in  lawful 
money,  the  sum  of  $645,  and  demanded  a  deed  of  assign- 
ment of  the  lot  of  ground,  but  which  was  refused.  It  is 
also  charged  that  Bradley  had  notice  of  the  optional  right 
of  the  plaintiff  at  the  time  of  taking  the  deed  of  assignment 
from  Applegarth,  and  that  such  deed  was  made  in  fraud  of 
the  rights  of  the  plaintiff  under  the  contract  of  September  3, 
1886.  The  relief  prayed  is  that  the  deed  to  Bradley  may  be 
declared  void,  and  that  Applegarth  may  be  decreed  to  con- 
vey the  lot  of  ground  to  the  plaintiff  upon  payment  by  the 
latter  of  the  $645,  and  for  general  relief. 

The  defendants,  both  Applegarth  and  Bradley,  by  their 
answers,  deny  that  there  was  any  binding  contract,  or  op- 
tional right  existing  in  regard  to  the  sale  of  the  lot,  as  be- 
tween Applegarth  and  the  plaintiff,  at  the  time  of  the  sale 
and  transfer  of  the  lot  to  Bradley ;  and  the  latter  denies  all 
notice  of  the  alleged  agreement  for  the  extension  of  time  for 
the  exercise  of  the  option  by  the  plaintiff ;  and  both  de- 
fendants rely  upon  the  statute  of  frauds  as  a  defense  to 
the  relief  prayed. 

The  plaintiff  was  examined  as  a  witness  in  his  own 
behalf,  and  he  also  called  and  examined  both  of  the  de- 
fendants as  witnesses  in  support  of  the  allegation  of  his 
bill  But  without  special  reference  to  the  proof  taken,  the 
questions  that  are  decisive  of  the  case  may  be  determined 
upon  the  facts  as  alleged  by  the  bill  alone,  in  connection 
with  the  contract  exhibited,  as  upon  demurrer;  such  facts 
being  considered  in  reference  to  the  grounds  of  defense  in- 
terposed by  the  defendants. 

The  contract  set  up  is  not  one  of  sale  and  purchase,  but 
simply  for  the  option  to  purchase  within  a  specified  time, 
and  for  a  given  price.  It  was  unilateral  and  binding  upon 
one  party  only.    There  was  no  mutuality  in  it,  and  it  was 


56 

binding  upon  Applegarth  only  for  the  time  stipulated  for 
the  exercise  of  the  option.  After  the  lapse  of  the  time 
given,  there  was  nothing  to  bind  him  to  accept  the  price 
and  convey  the  property;  and  the  fact  that  this  unilateral 
agreement  was  reduced  to  writing  added  nothing  to  give 
it  force  or  operative  effect  beyond  the  time  therein  limited 
for  the  exercise  of  the  option  by  the  plaintiff.  *  *  * 
Here,  time  was  of  the  very  essence  of  the  agreement,  the 
nominal  consideration  being  paid  to  the  owner  for  holding 
the  property  for  the  specified  time,  subject  to  the  right  of  the 
plaintiff  to  exercise  his  option  whether  he  would  buy  it  or 
not.  When  the  time  limited  expired,  the  contract  was  at 
an  end,  and  the  right  of  option  gone,  if  that  right  has  not 
been  extended  by  some  valid  binding  agreement  that  can 
be  enforced.  This  would  seem  to  be  the  plain  dictate  of 
reason,  upon  the  terms  and  nature  of  the  contract  itself  ; 
and  that  is  the  plain  result  of  the  decision  of  this  court, 
made  in  respect  to  an  optional  contract  to  purchase,  in  the 
case  of  Maughlin  v.  Perry,  35  Md.  352. 

As  must  be  observed,  it  is  not  alleged  or  pretended  that 
the  plaintiff  attempted  to  exercise  his  option,  and  to  com- 
plete a  contract  of  purchase,  within  the  time  limited  by  the 
written  agreement  of  the  3d  of  September,  1886.  But  it 
is  alleged  and  shown  that  before  the  expiration  of  such 
time,  the  defendant  Applegarth,  verbally  agreed  or  prom- 
ised to  extend  the  time  for  the  exercise  of  the  option  by 
the  plaintiff  from  the  1st  of  Nevember  to  the  1st  of  Decem- 
ber, 1886;  and  that  it  was  within  this  latter  or  extended 
period  and  after  the  property  had  been  sold  and  conveyed 
to  Bradley,  that  the  plaintiff  proffered  himself  ready  to 
accept  the  property  and  pay  the  price  therefor.  It  is  quite 
clear,  however,  that  such  offer  to  accept  the  property  came 
too  late.  There  was  no  consideration  for  the  verbal  prom- 
ise or  agreement  to  extend  the  time,  and  such  promise  was 
a  mere  nudum  pactum,  and  therefore  not  enforceable,  to  say 
nothing  of  the  statute  of  frauds,  which  has  been  invoked 
by  the  defendants.    After  the  1st  of  November,  1886,  the 


57 

verbal  agreement  of  Applegarth  operated  simply  as  a  mere 
continuing  offer  at  the  price  previously  fixed,  and  which 
offer  only  continued  until  it  should  be  withdrawn  or  other- 
wise ended  by  some  act  of  his;  but  he  was  entirely  at 
liberty  at  any  time,  before  acceptance,  to  withdraw  the 
offer;  and  the  subsequent  sale  and  transfer  of  the  property 
to  Bradley  had  the  effect  at  once  of  terminating  the  offer 
to  the  plaintiff. 

The  principles  that  govern  in  cases  like  the  present 
are  very  fully  and  clearly  stated  by  the  English  court  of 
appeal  in  chancery  in  the  case  of  Dickinson  v.  Dodds,  2 
Ch.  Div.  463.  That  case,  in  several  of  its  features,  is  not 
unlike  the  present.  There  the  owner  of  property  signed  a 
document  which  purported  to  be  an  agreement  to  sell  it  at 
a  fixed  price,  but  added  a  postscript,  which  he  also  signed, 
in  these  words :  "This  offer  to  be  left  over  until  Friday, 
nine  o'clock  A.  M.,"  two  days  from  the  date  of  the  agree- 
ment. Upon  application  of  the  party,  who  claimed  to  be 
vendee  of  the  property,  for  specific  performance,  it  was 
held,  upon  full  and  careful  consideration  by  the  court  of 
appeal,  that  the  document  amounted  only  to  an  offer,  which 
might  be  withdrawn  at  any  time  before  acceptance,  and  that 
a  sale  to  a  third  person  which  came  to  the  knowledge  of 
the  person  to  whom  the  offer  was  made  was  an  effectual 
withdrawal  of  the  offer.  In  the  course  of  his  judgment, 
after  declaring  the  written  document  to  be  nothing  more 
than  an  offer  to  sell  at  a  fixed  price,  Lord  Justice  James 
said: 

"There  was  no  consideration  given  for  the  undertaking 
or  promise  to  whatever  extent  it  may  be  considered  bind- 
ing, to  keep  the  property  unsold  until  nine  o'clock  on 
Friday  morning;  but  apparently  Dickinson  was  of  opinion, 
and  probably  Dodds  was  of  the  same  opinion,  that  he 
(Dodds)  was  bound  by  that  promise,  and  could  not  in 
any  way  withdraw  from  it,  or  retract  it,  until  nine  o'clock 
on  Friday  morning,  and  this  probably  explains  a  good  deal 
of  what  afterwards  took  place.    But  it  is  clear,  settled  law, 


58 

on  one  of  the  clearest  principles  of  law,  that  this  promise 
being  a  mere  nudum  pactum,  was  not  binding,  and  that  at 
any  moment  before  complete  acceptance  by  Dickinson  of 
the  offer,  Dodds  was  as  free  as  Dickinson  himself.  That 
being  the  state  of  things,  it  is  said  that  the  only  mode  in 
which  Dodds  could  assert  that  freedom  was  by  actually 
and  distinctly  saying  to  Dickinson,  'Now  I  withdraw  my 
offer.'  It  appears  to  me  that  there  is  neither  principle  nor 
authority  for  the  proposition  that  there  must  be  an  express 
and  actual  withdrawal  of  the  offer,  or  what  it  called  a 
retraction.  It  must,  to  constitute  a  contract,  appear  that 
the  two  minds  were  at  one,  at  the  same  moment  of  time, 
that  is,  that  there  was  an  offer  continuing  up  to  the  time 
of  the  acceptance.  If  there  was  not  such  a  continuing 
offer,  then  the  acceptance  comes  to  nothing." 

And  Lord  Justice  Mellish  was  quite  as  explicit  in  stat- 
ing his  judgment,  in  the  course  of  which  he  said : 

"He  was  not  in  point  of  law  bound  to  hold  the  offer 
over  until  nine  o'clock  on  Friday  morning.  He  was  not 
so  bound  either  in  law  or  in  equity.  Well,  that  being  so, 
when  on  the  next  day  he  made  an  agreement  with  Allan  to 
sell  the  property  to  him,  I  am  not  aware  of  any  ground  on 
which  it  can  be  said  that  that  contract  with  Allan  was  not 
as  good  and  binding  a  contract  as  ever  was  made.  Assum- 
ing Allan  to  have  known  (there  is  some  dispute  about  it  and 
Allan  does  not  admit  that  he  knew  it,  but  I  will  assume  that 
he  did)  that  Dodds  made  the  offer  to  Dickinson,  and  had 
given  him  until  Friday  morning  at  nine  o'clock  to  accept 
it,  still,  in  point  of  law,  that  could  not  prevent  Allan  from 
making  a  more  favorable  offer  than  Dickinson,  and  entering 
at  once  into  a  binding  agreement  with  Dodds." 

And  further  on  he  says: 

"If  the  rule  of  law  is  that  a  mere  offer  to  sell  prop- 
erty, which  can  be  withdrawn  at  any  time,  and  which  is 
made  dependent  on  the  acceptance  of  the  person  to  whom 
it  is  made,  is  a  mere  nudum  pactum,  how  is  it  possible  that 


59 

the  person  to  whom  the  offer  has  been  made  can  by  accept- 
ance make  a  binding  contract  after  he  knows  that  the 
person  who  has  made  the  offer  has  sold  the  property  to 
some  one  else?  It  is  admitted  law  that  if  a  man  who  makes 
an  offer  dies,  the  offer  cannot  be  accepted  after  he  is  dead, 
and  parting  with  the  property  has  very  much  the  same  effect 
as  the  death  of  the  owner,  for  it  makes  the  performance  of 
the  offer  impossible.  I  am  clearly  of  opinion  that,  just  as 
when  a  man  who  has  made  an  offer  dies  before  it  is  accepted 
it  is  impossible  that  it  can  then  be  accepted,  so  when  one 
of  the  persons  to  whom  the  offer  was  made  knows  that  the 
property  has  been  sold  to  someone  else,  it  is  too  late  for  him 
to  accept  the  offer;  and  on  that  ground  I  am  clearly  of 
opinion  that  there  was  no  binding  contract  for  the  sale  of 
this  property  by  Dodds  to  Dickinson." 

In  this  case,  the  plaintiff  admits  that,  at  the  time  he 
proffered  to  Applegarth  acceptance  of  the  previous  offer  to 
sell  at  the  price  named,  he  was  aware  of  the  fact  that  the 
property  had  been  sold  to  Bradley.  It  was,  therefore,  too 
late  for  him  to  attempt  to  accept  the  offer,  and  there  was 
not,  and  could  not  be  made  by  such  proffered  acceptance, 
any  binding  contract  of  sale  of  the  property. 

It  follows  that  the  decree  of  the  court  below,  dismissing 
the  bill  of  the  plaintiff,  must  be  affirmed. 

Editor's  Note. — The  plaintiffs,  the  owners  of  a  distillery,  and 
defendant  signed  a  paper  in  which  the  plaintiffs  agreed  that  the  de- 
fendant might  purchase  the  distillery  during  the  year  1871  for  $5000, 
defendant  agreeing  that  he  would  pay  plaintiffs  $1000  if  he  did  not 
buy  during  the  year  for  the  privilege.  The  court  said :  "It  is  not  a 
bargain  and  sale  of  the  property  at  $5000,  but  a  proposition  and  obli- 
gation on  the  part  of  the  plaintiffs,  to  sell  it  to  the  defendant  at  that 
price,  with  the  privilege  to  him  to  make  the  purchase  or  not,  as  he 
may  determine  within  the  year.  For  this  option  which  was  a  valuable 
privilege,  he  agrees  to  pay  the  $1000  in  the  event  of  his  declining  to 
make  the  purchase.  The  defendant  acquired  the  right  under  the  con- 
tract to  purchase  the  property  for  the  proposed  price.  The  plain- 
tiffs had  obligated  themselves  to  sell  at  that  price;  but  defendant 
was  under  no  obligation  to  buy.  He  merely  bound  himself  to  pay 
the  $1000  for  the  privilege  of  buying,  and  in  case  he  did  not  buy, 
it  was  entirely  optional  with  the  defendants  to  purchase  the  prop- 
erty or  let  it  alone;  whilst  the  plaintiffs  had  abandoned  the  right 
to  make  sale  to  anyone  else  during  the  year." — Grebenhorst  v .  Nico- 
demus,  42  Md.  236. 


60 

Necessity  for  communication  of  revocation  of  offer 
BRAUER  v.  SHAW, 
168  Mass.  198  (1897). 

Two  actions  of  contract  for  the  alleged  breach  of  two 
contracts.  The  lower  court  ruled  that  the  plaintiffs  were 
not  entitled  to  recover  in  either  action  and  directed  the  jury 
to  return  a  verdict  for  the  defendants  in  each  case.  The 
plaintiff's  excepted  and  appealed. 

Holmes,  J. :  The  two  actions  are  based  on  alleged  con- 
tracts letting  all  the  cattle  carrying  space  on  the  Warren 
Line  of  steamships  for  the  May  sailing  from  Boston  to 
Liverpool,  the  first  contract  at  the  rate  of  50s.  per  head ; 
the  second,  an  alternative  one,  at  52s.  6d.  per  head. 

[The  court  was  of  the  opinion  that  for  one  reason  or 
another  the  right  to  compensation  upon  the  first  contract 
was  not  made  out.] 

We  come  then  to  the  later  telegrams  of  the  same  day 
which  arc  relied  upon  as  making  the  second  contract.  At 
half-past  eleven  the  defendant  telegraphed,  "Subject  prompt 
reply,  will  let  you  May  space,  fifty-two  six."  This  was 
received  in  New  York  at  sixteen  minutes  past  twelve,  and 
at  twenty-eight  minutes  past  twelve  a  reply  was  sent  accept- 
ing the  offer.  For  some  reason  this  was  not  received  by 
defendants  until  twenty  minutes  past  one.  At  one  the 
defendants  telegraphed  revoking  the  offer,  the  message  being 
received  in  New  York  at  forty-three  minutes  past  one.  The 
plaintiff  held  the  defendants  to  their  bargain,  and  both 
parties  stand  upon  their  rights. 

There  is  no  doubt  that  the  reply  was  handed  to  the 
telegraph  company  promptly,  and  at  least,  it  would  have 
been  open  to  a  jury  to  find  that  the  plaintiffs  had  done  all 
that  was  necessary  on  their  part  to  complete  the  contract. 
If,  then,  the  offer  was  outstanding  when  it  was  accepted,  the 
contract  was  made.  But  the  offer  was  outstanding.  At  the 
time  when  the  acceptance  was  received,  even  the  revocation 
of  the  offer  had  not  been  received.    It  seems  to  us  a  rea- 


61 

sonabie  requirement,  that  to  disable  the  plaintiffs  from 
accepting  their  offer,  the  defendants  should  bring  home  to 
them  actual  notice  that  it  had  been  revoked.  By  their  choice 
and  act,  they  brought  about  a  relation  between  themselves 
and  the  plaintiffs,  which  the  plaintiffs  could  turn  into  a 
contract  by  an  act  on  their  part,  and  authorize  the  plaintiffs 
to  understand  and  to  assume  that  that  relation  existed. 
When  the  plaintiffs  acted  in  good  faith  on  the  assumption, 
the  defendants  could  not  complain.  Knowingly  to  lead  a 
person  reasonably  to  suppose,  that  you  offer,  and  to  offer, 
are  the  same  thing.  O'Donnell  v.  Clinton,  145  Mass.  461. 
The  offer  must  be  made  before  the  acceptance,  and  it  does 
not  matter  whether  it  is  made  a  longer  or  a  shorter  time 
before,  if,  by  its  express  or  implied  terms,  it  is  outstanding 
at  the  time  of  the  acceptance.  Whether  much  or  little  time 
has  intervened,  it  reaches  forward  to  the  moment  of  accept- 
ance, and  speaks  then.  It  would  be  monstrous  to  allow  an 
inconsistent  act  of  the  offerer,  not  known  or  brought  to  the 
notice  of  the  offeree,  to  affect  the  making  of  the  contract ; 
for  instance,  a  sale  by  an  agent  elsewhere  one  minute  after 
the  principal  personally  has  offered  goods  which  are  ac- 
cepted within  five  minutes  by  the  person  to  whom  he  is 
speaking.  The  principle  is  the  same  when  the  time  is  longer, 
and  the  act  relied  on  a  step  looking  to,  but  not  yet  giving 
notice. 

Exceptions  sustained. 

Editor's  Note. — The  offer  may  be  withdrawn  and  the  withdrawal 
thereof  is  effectual  so  soon  as  the  notice  thereof  reaches  the  other 
party,  but  if  before  that  time  the  offer  is  accepted,  the  party  making 
the  offer  is  bound  and  the  withdrawal  thereafter  is  too  late.  In  this 
case  it  appears  the  defendant's  letter  of  withdrawal  was  sent  on  the 
same  day  on  which  the  notice  of  the  plaintiff's  acceptance  of  their 
previous  offer  was  transmitted  and  it  has  been  argued  that  the  onus 
is  on  the  plaintiff  to  show  that  the  sending  of  the  acceptance  preceded 
the  sending  of  the  letter  of  withdrawal.  This  position  is  not  clear ; 
it  is  quite  immaterial  to  inquire  whether  the  defendant's  letter  or  the 
plaintiff's  draft  was  first  sent. 

Until  the  notice  of  the  withdrawal  of  the  offer  actually  reached 
the  plaintiff  the  offer  was  continuing  and  the  acceptance  thereof 
completed  the  contract. — Wheat  et  al.  v.  Cross,  31  Md.  99. 

"While  an  acceptance  is  complete  where  a  letter  is  denosited 
in  the  mail,  a  retraction  of  an  offer  can  have  no  effect  until  it  is 


62 

Offer  must  be  accepted  within  reasonable  time 

AVERILL  ET  AL.  v.  HEDGES, 

12  Conn.  424  (1838). 

Motion  by  plaintiffs  for  new  trial  after  verdict  for 
defendant. 

This  was  an  action  of  assumpsit.  On  February  29,  1836, 
Averill,  residing  at  Hartford,  Conn.,  inquired  by  letter  of 
John  Thomas,  agent  for  Washington  Iron  Co.,  at  Wareham, 
Mass.,  upon  what  terms  he  could  supply  Averill  with  a 
quantity  of  iron  of  certain  descriptions.  On  March  2 
Thomas  replied,  specifying  the  terms  on  which  he  would 
furnish  the  articles  in  question.  On  the  14th  of  March 
Averill  wrote  to  Thomas  on  other  business,  but  took  no 
notice  of  the  offer  made  in  Thomas'  first  letter.  On  the 
16th  Thomas  replied,  and,  at  the  close  of  his  letter,  inquired 
of  Averill  whether  he  accepted  his  proposal  regarding  the 
iron.  This  letter  arrived  at  Hartford  on  the  18th  of  March, 
about  two  o'clock  P.  M.  In  a  letter  dated  the  19th,  but  not 
put  into  the  post  office  until  the  20th,  Averill  accepted 
Thomas'  proposal.  There  was  no  direct  mail  to  Wareham 
going  out  on  the  20th,  which  was  Sunday.  The  letter  was 
not  actually  sent  until  the  morning  of  the  21st,  and  it  reached 
Thomas  with  another  letter  from  Averill  dated  the  21st  on 
the  23rd.  Previous  to  this  Thomas  had  disposed  of  the 
iron,  and  could  not  comply  with  Averill's  order.  On  the  19th 
there  was  a  direct  mail  to  Wareham,  leaving  Hartford  be- 
tween five  and  six  o'clock  A.  M.,  by  which  a  letter  would 
reach  Wareham  next  day. 

Vissel,  J. :  The  great  question  in  the  case  is  whether, 
upon  the  facts,  there  has  been  an  acceptance  of  the  defend- 
ant's offer,  so  that  he  is  bound  by  it.    *    *    * 


communicated  to  the  person  to  whom  the  offer  is  made  and  the 
revocation  can  take  effect  only  if  it  is  communicated  to  the  other 
party  before  its  acceptance.  An  offer  to  contract  communicated  by 
post  must  be  considered  as  continually  made  until  it  reaches  the 
other  party.  If  he  accepts  before  knowledge  of  a  retraction  of  the 
offer  the  contract  is  binding." — Brunner  Co.  v.  Standard  Lumber 
Co.,  63  Pa.  Sup.  283,  290. 


63 

It  is  very  immaterial  when  the  letter  of  acceptance  of 
the  plaintiff  was  written;  until  sent  it  was  entirely  in  their 
power  and  under  their  control,  and  was  no  more  an  ac- 
ceptance of  the  defendant's  offer  than  a  bare  determina- 
tion, locked  up  in  their  own  bosoms,  and  uncommunicated, 
would  have  been,  And  it  surely  will  not  be  claimed  that 
mere  volitions,  a  mere  determination  to  accept  a  proposal, 
constituted  a  contract.  The  plaintiffs,  then  did  not  accept 
the  defendant's  proposition  until  the  20th,  and,  for  aught 
that  appears,  until  the  evening  of  that  day.  That  they 
were  bound  to  accept,  within  a  reasonable  time,  was  dis- 
tinctly admitted  in  the  argument;  and  if  not  admitted,  the 
position  is  undeniable.  The  case  of  the  plaintiffs,  then, 
comes  to  this,  and  this  is  the  precise  ground  of  their  claim ; 
that  they  had  a  right  to  hold  the  defendant's  offer  under 
advisement  for  more  than  48  hours,  and  to  await  the  arrival 
of  three  mails  from  New  York,  advising  them  of  the  state 
of  the  commodity  in  the  market ;  and  having  then  determined 
to  accept,  the  defendant  was  bound  by  his  offer;  and  that 
this  constitutes  a  valid  mercantile  contract.  Now,  in  regard 
to  such  a  claim,  we  can  only  say  that  it  appears  to  us  to 
be  in  the  highest  degree  unreasonable ;  and  that  we  know  of 
no  principle,  of  no  authority,  from  which  it  deserves  the 
slightest  support. 

Indeed,  it  seems  to  us  to  be  subversive  of  the  whole 
law  of  contracts.  However,  it  is  most  obvious  that  if,  dur- 
ing the  interval,  the  defendant  was  bound  by  his  offer, 
there  was  entire  want  of  mutuality ;  the  one  party  was  bound, 
while  the  other  was  not.  Had  a  proposition  been  made  at  a 
personal  interview  between  the  parties,  there  can  be  no  pre- 
tense that  it  would  have  bound  the  defendant  beyond  the 
termination  of  the  interview.  *  *  *  Thus  in  the  case  of 
Adams  v.  Lindsell,  1  B.  &  A.  681,  there  was  an  offer  to  sell 
goods  on  certain  specified  terms,  provided  an  acceptance  of 
the  offer  was  signified  by  return  mail.  This  was  done ;  and 
it  was  lield  (the  defendant  not  having  retracted  his  offer 
in  the  meantime),  that  the  contract  was  complete.     It  is 


64 

not  easy  to  reconcile  this  decision  with  that  of  Cookes  v. 
Oxley  (3  T.  Rep.  653)  unless  it  can  be  distinguished  on 
the  ground  that,  as  the  offer  was  made  through  the  mail, 
the  party  is  to  be  considered  as  repeating  the  offer  at  every 
moment  until  the  other  party  has  had  an  opportunity  of 
manifesting  his  acceptance.  And  this  seems  to  have  been 
the  ground  on  which  the  case  was  placed  by  the  Court  of 
King's  Bench.  They  say:  "If  the  defendants  were  not 
bound  by  their  offer,  when  accepted  by  the  plaintiffs,  till 
the  answer  was  received,  then  the  plaintiffs  ought  not  to  be 
bound  till  after  they  had  received  the  notification  that  the 
defendant  had  received  their  answer  and  was  bound  by  it ; 
and  so  it  might  go  on  ad  infinitum.  The  defendants  must 
be  considered  in  law  as  making,  during  every  instant  of  time 
a  letter  was  traveling,  the  same  identical  offer  to  the  plain- 
tiffs; and  then  the  contract  is  completed  by  the  acceptance 
of  it  by  the  latter." 

The  case  of  Adams  v.  Lindsell  is  regarded  as  an  au- 
thority, and  followed  by  the  Supreme  Court  of  Errors  of 
the  State  of  New  York  in  Mactier  v.  Frith,  6  Wend.  103. 
And  there  the  doctrine  is  asserted  that  the  acceptance  of  an 
offer,  made  through  the  medium  of  a  letter,  binds  the  bar- 
gain, if  the  party  making  the  offer  has  not  in  the  meantime 
revoked  it.  In  this  case,  which  goes  as  far  as  any  of  the 
cases  on  this  subject,  the  rule  is  laid  down  that  the  offer 
continues  until  the  letter  containing  it  is  received,  and  the 
party  has  had  fair  opportunity  to  answer  it.  And  it  is  fur- 
ther said,  that  a  letter  written  would  not  be  an  acceptance, 
so  long  as  it  remained  in  the  possession  or  under  the  con- 
trol of  the  writer.  An  offer,  then,  made  through  a  letter 
is  not  continued  beyond  the  time  that  the  party  has  a  "fair 
opportunity"  to  answer  it.  Once  establish  the  principle 
that  a  party  to  whom  an  offer  is  made  may  hold  it  under 
consideration  more  than  48  hours,  watching  in  the  mean- 
time the  fluctuations  of  the  market,  and  then  bind  the  other 
party  by  his  acceptance,  and  it  is  plain  that  you  create  a 
shock  through  the  commercial  community',  utterly  destruc- 


65 

tive  of  all  mercantile  confidence.    No  offers  would  be  made 
by  letter.    It  would  be  unsafe  to  make  them. 
New  trial  refused. 


Lapse — Failure  to  accept  in  manner  prescribed 

ELIASON  ET  AL.  v.  HENSHAW, 

4  Wheaton  (U.  S.)  225  (1819). 

Appeal  from  judgment  for  plaintiff  (Henshaw). 

Washington-,  J. :  This  is  an  action,  brought  by  the 
plaintiff,  to  recover  damages  for  the  non-performance  of 
the  agreement,  alleged  to  have  been  entered  into  by  the 
defendant,  for  the  purchase  of  a  quantity  of  flour,  at  a 
stipulated  price.  The  evidence  of  this  contract,  given  in 
the  court  below,  is  stated  in  a  bill  of  exceptions,  and  is  to 
the  following  effect : 

A  letter  from  the  defendants  to  the  plaintiff,  dated  the 
10th  of  February,  1813,  in  which  they  say:  "Capt.  Conn 
informs  us  that  you  have  a  quantity  of  flour  to  dispose  of. 

Editor's  Note. — When  a  letter  containing  an  offer  requires  an 
answer  by  return  mail,  the  acceptance  must  be  sent  by  the  next  post. 
If  the  offer  does  not  specify  the  time,  the  acceptance  must  be  within 
a  reasonable  time,  or  the  offer  will  lapse. 

When  the  parties  are  dealing  with  regard  to  a  mercantile 
commodity  the  price  of  which  in  the  market  changes  from  day  to 
day,  and  the  party  who  receives  the  offer  does  not  post  his  accept- 
ance during  the  same  business  day,  he  cannot  take  advantage  of  a 
rise  in  the  market  price,  and  accept  upon  some  other  business  day. 
What  in  any  case  is  reasonable  time  must  be  dependent  upon  the 
situation  of  the  parties,  and  the  subject  matter  of  the  negotiations. 

What  is  a  reasonable  time  for  acceptance  is  a  question  of  law 
for  the  court  in  such  commercial  transactions  as  happen  in  the 
same  way,  day  after  day,  and  present  the  question  upon  the  same 
data  in  continually  regarding  instances,  and  where  the  time  taken 
is  so  clearly  reasonable  or  unreasonable  that  there  can  be  no  ques- 
tion of  doubt  as  to  the  proper  answer  to  the  question.  When  the 
answer  to  the  question  is  one  dependent  on  many  different  circum- 
stances, which  do  not  continually  recur  in  other  cases  of  like  char- 
acter, and  with  respect  to  which  no  certain  rule  of  law  could  be 
laid  down,  the  question  is  one  of  fact  for  the  jury. — Boyd  v.  Peanut 
Co.,  25  Pa.  S.  C.  199. 


66 

Y.'e  are  in  the  practice  of  purchasing  flour  at  all  times,  in 
Georgetown,  and  will  be  glad  to  serve  you,  either  in  re- 
ceiving your  flour  in  store  when  the  markets  are  dull,  and 
disposing  of  it  when  the  markets  will  answer  to  advantage, 
or  we  will  purchase  at  market  price  when  delivered ;  if 
you  are  disposed  to  engage  two  or  three  hundred  barrels 
at  present,  we  will  give  you  $9.50  per  barrel,  deliverable  the 
first  water,  in  Georgetown,  or  any  service  we  can.  If  you 
should  want  an  advance,  please  write  us  by  mail,  and  will 
send  you  part  of  the  money  in  advance."  In  a  postscript 
they  add:  "Please  write  by  return  of  wagon  whether  you 
accept  our  offer."  This  letter  was  sent  from  the  house  at 
which  the  writer  then  was,  about  two  miles  from  Harper's 
Ferry,  to  the  plaintiff  at  his  mill,  at  Mill  Creek,  distant 
about  twenty  miles  from  Harper's  Ferry,  by  a  wagoner 
then  employed  by  the  plaintiff  to  haul  flour  from  his  mill 
to  Harper's  Ferry,  and  then  about  to  return  home  with  his 
wagon.  He  delivered  the  letter  to  the  plaintiff  on  the 
14th  of  the  same  month,  to  which  an  answer,  dated  the  suc- 
ceeding day,  was  written  by  the  plaintiff,  addressed  to  the 
defendants,  at  Georgetown,  and  dispatched  by  a  mail  which 
left  Mill  Creek  on  the  19th,  being  the  first  regular  mail 
from  that  place  to  Georgetown.  In  this  letter  the  writer 
says :  "Your  favor  of  the  10th  inst.  was  handed  me  by  Mr. 
Chenoweth  last  evening.  I  take  the  earliest  opportunity 
to  answer  it  by  post.  Your  proposal  to  engage  300  barrels 
of  flour,  delivered  in  Georgetown,  by  the  first  water,  at  $9.50 
per  barrel,  I  accept ;  shall  send  on  the  flour  by  the  first  boats 
that  pass  down  from  where  my  flour  is  stored  on  the  river ; 
as  to  any  advance,  will  be  unnecessary — payment  on  delivery 
is  all  that  is  required." 

On  the  25th  of  the  same  month  the  defendants  ad- 
dressed to  the  plaintiff  an  answer  to  the  above,  dated  at 
Georgetown,  in  which  they  acknowledge  the  receipt  of  it,  and 
add :  "Not  having  heard  from  you  before,  had  quite  given 
over  the  expectation  of  getting  your  flour,  more  particularly 
as  we  requested  an  answer  by  return  of  wagon  the  next  day, 


67 

and,  as  we  did  not  get  it,  had  bought  all  we  wanted."  The 
wagoner,  by  whom  the  defendants'  first  letter  was  sent,  in- 
formed them,  when  he  received  it,  that  he  should  not  prob- 
ably return  to  Harper's  Ferry,  and  he  did  not,  in  fact,  re- 
turn in  the  plaintiff's  employ.  The  flour  was  sent  down  to 
Georgetown  some  time  in  March,  and  the  delivery  of  it  to 
the  defendants  was  regularly  tendered  and  refused. 

Upon  this  evidence  the  defendants  moved  the  court 
below  to  instruct  the  jury  that  if  they  believed  the  said  evi- 
dence to  be  true,  as  stated,  the  plaintiff  in  this  action  was  not 
entitled  to  recover  the  amount  of  the  price  of  the  300  barrels 
of  flour,  at  the  rate  of  $9.50  per  barrel.  The  court  being 
divided  in  opinion,  the  instruction  prayed  for  was  not  given. 
The  question  is,  whether  the  court  below  ought  to  have 
given  the  instruction  to  the  jury  as  the  same  was  prayed  for? 
If  they  ought,  the  judgment,  which  was  in  favor  of  the 
plaintiff  in  that  court,  must  be  reversed. 

It  is  an  undeniable  principle  of  the  law  of  contracts 
that  an  offer  of  a  bargain,  by  one  person  to  another,  im- 
poses no  obligation  upon  the  former  until  it  is  accepted  by 
the  latter,  according  to  the  terms  in  which  the  offer  was 
made.  Any  qualification  of,  or  departure  from,  those  terms 
invalidates  the  offer,  unless  the  same  be  agreed  to  by  the 
person  who  made  it.  Until  the  terms  of  the  agreement  have 
received  the  assent  of  both  parties,  the  negotiation  is  open, 
and  imposes  no  obligation  upon  either. 

In  this  case  the  defendants  offered  to  purchase  from 
the  plaintiff  two  or  three  hundred  barrels  of  flour,  to 
be  delivered  at  Georgetown,  by  the  first  water,  and  to 
pay  for  the  same  $9.50  per  barrel.  To  the  letter  containing 
this  offer  they  required  an  answer  by  the  return  of  the 
wagon,  by  which  the  letter  was  dispatched.  This  wagon  was 
at  that  time  in  the  service  of  the  plaintiff,  and  employed 
by  him  in  hauling  flour  from  his  mill  to  Harper's  Ferry, 
near  to  which  place  the  defendants  then  were.  The  meaning 
of  the  writers  was  obvious.  They  could  easily  calculate, 
by  the  usual  length  of  time  which  was  employed  by  this 


68 

wagon  in  traveling  from  Harper's  Ferry  to  Mill  Creek  and 
back  again  with  a  load  of  flour,  about  what  time  they  should 
receive  the  desired  answer,  and  therefore  it  was  entirely 
unimportant  whether  it  was  sent  by  that  or  another  wagon, 
or  in  any  other  manner,  provided  it  was  sent  to  Harper's 
Ferry,  and  was  not  delayed  beyond  the  time  which  was 
ordinarily  employed  by  wagons  engaged  in  hauling  flour 
from  the  plaintiff's  mill  to  Harper's  Ferry.  Whatever  un- 
certainty there  might  have  been  as  to  the  time  when  the 
answer  would  be  received,  there  was  none  as  to  the  place  to 
which  it  was  to  be  sent;  this  was  distinctly  indicated  by  the 
mode  pointed  out  for  the  conveyance  of  the  answer.  The 
place,  therefore,  to  which  the  answer  was  to  be  sent,  con- 
stituted an  essential  part  of  the  defendants'  offer. 

It  appears,  however,  from  the  bill  of  exceptions,  that 
no  answer  to  this  letter  was  at  any  time  sent  to  the  defend- 
ants at  Harper's  Ferry.  Their  offer,  it  is  true,  was  accepted 
by  the  terms  of  a  letter  addressed  Georgetown,  and  re- 
ceived by  the  defendants  at  that  place;  but  an  acceptance 
communicated  at  a  place  different  from  that  pointed  out  by 
the  defendants,  and  forming  a  part  of  their  proposal,  im- 
posed no  obligation  binding  upon  them,  unless  they  had 
acquiesced  in  it,  which  they  declined  doing.  It  is  no  argu- 
ment that  an  answer  was  received  at  Georgetown;  the  de- 
fendants had  a  right  to  dictate  the  terms  upon  which  they 
would  purchase  the  flour,  and  unless  they  were  complied 
with,  they  were  not  bound  by  them.  All  their  arrangements 
may  have  been  made  with  a  view  to  the  circumstances  of 
place,  and  they  were  the  only  judges  of  its  importance. 
There  was,  therefore,  no  contract  concluded  between  these 
parties,  and  the  Court  ought,  therefore,  to  have  given  the 
instruction  to  the  jury  which  was  asked  for. 

Judgment  reversed  and  new  trial  ordered. 

Editor's  Note.— Where  an  offer  is  sent  my  mail,  a  reply  accept- 
ing the  offer  sent  by  telegram  or  other  means  equally  expeditious 
with  the  mails  if  received  by  the  offerer  would  effect  a  contract. 
Where  the  offer  is  by  advertisement  an  acceptance  by  post  is  not 
communicated  until  the  letter  of  acceptance  actually  reaches  the 
offerer.— Haldane  v.  U.  S.,  69  Fed.  819. 


69 
L  Lapse — Passage  of  time 

7^      LOXGWORTH  ET  AL,  EXECUTORS,  v.  MITCHELL, 

26  Ohio  334  (1875). 

Appeal  from  decree  entered  in  favor  of  plaintiff 
(  Mitchell). 

Nicholas  Longworth  leased  a  certain  lot  in  the  city 
of  Cincinnati  to  the  plaintiff,  Mitchell,  for  a  term  of  fourteen 
years.  The  lease  also  contained  a  provision  that  Mitchell 
might  purchase  at  any  time  during  the  first  seven  years  of 
occupancy  at  the  rate  of  $250  per  front  foot,  or  at  any 
time  within  the  last  seven  years  at  the  rate  of  $300  per 
front  foot.  Just  before  the  close  of  the  first  period,  Mitchell 
elected  to  become  the  purchaser  of  the  lot,  and  tendered  to 
the  executors  of  Longworth  $250  per  front  foot,  and  de- 
manded a  deed.  The  executor  refused  to  make  deed  on 
the  ground,  among  others,  that  prior  to  the  time  when 
Mitchell  tendered  the  sum  stipulated  they,  the  executors, 
were  negotiating  for  the  sale  of  the  lot  to  the  C.  &  I.  R.  R. 
Co.  They  alleged  that  Mitchell  was  aware  of  this  negotia- 
tion, and  had  agreed  with  the  executors  that  he  would  sur- 
render his  lease  to  them  if  they  would  pay  him  $2,000,  and 
gave  them  two  weeks  in  which  to  accept  and  comply  with  the 
offer.  There  was  a  conflict  of  evidence  at  the  trial  as  to 
whether  an  offer  was  made  by  the  executors  within  the  two 
weeks'  period  allowed.  The  court  found  that  the  offer  was 
made  sixteen  days  before  it  v/as  accepted  by  the  executors, 
and  thereupon  rendered  judgment  in  favor  of  Mitchell, 
ordering  a  specific  execution  of  the  contract. 

Among  other  errors  which  were  assigned  as  reasons  for 
the  reversal  of  judgment  was  the  following :  "The  time  al- 
lowed for  acceptance  of  the  offer  was  not  material,  and  its 
acceptance  two  days  after  the  expiration  of  the  two  weeks 
was  sufficient." 

Welch,  C.  J. :  The  rule  frequently  adopted  in  a  court 
of  equity,  that  time  is  not  of  the  essence  of  a  contract,  does 
not  apply,  as  we  understand  the  law,  to  a  mere  offer  to  make 


70 

a  contract.  The  offer  rests  upon  no  consideration,  and  may 
be  withdrawn  at  any  time  before  acceptance.  An  offer  with- 
out time  given  for  its  acceptance  must  be  accepted  imme- 
diately or  not  at  all,  and  a  limitation  of  time  for  which  a 
standing  offer  is  to  run  is  equivalent  to  the  withdrawal  of 
the  offer  at  the  end  of  the  time  named.  A  standing  offer 
is  in  the  nature  of  a  favor  granted  to  the  opposite  party, 
and  cannot  on  any  just  principle  be  made  available  after 
the  time  limit  has  expired. 
Judgment  affirmed. 


/ 

Lapse — Death  of  the  offeror 

PRATT,  ADMX.,  v.  BAPTIST  SOCIETY, 

93  111.475  (1879). 

Action  on  notes.  Appeal  from  judgment  for  plaintiff 
(Baptist  Society). 

The  Baptist  Society  obtained  judgment  against  Mary 
L.  Pratt  as  administratrix  of  the  estate  of  P.  B.  Pratt,  on 
two  promissory  notes  executed  by  the  deceased,  one  for 
$300  and  the  other  for  $327.50.  These  notes  were  given 
to  enable  the  Baptist  Society  to  purchase  a  bell.  It  was 
shown  at  the  trial  that  a  bell  was  procured,  and  probably 
upon  the  faith  of  the  notes,  but  it  appears  with  reasonable 
certainty  that  this  had  been  done  since  Pratt's  death.  The 
question  raised  on  appeal  was  whether  Pratt's  death  revoked 
the  promise  expressed  in  the  notes,  no  money  having  been 
expended  or  labor  bestowed  or  liability  of  any  kind  incurred 
prior  to  his  death  upon  the  faith  of  that  promise. 

Scholfield,  J. :  The  promise  stands  as  a  mere  offer, 
and  may,  by  necessary  consequence,  be  revoked  at  any  time 
before  it  is  acted  upon.  It  is  the  expending  of  money,  etc., 
or  incurring  of  legal  liability  on  the  faith  of  the  promise, 
which  gives  the  right  of  action,  and  without  this  there  is 
no  right  of  action.  McClure  v.  Wilson,  43  111.  356,  and 
cases  there  cited.     Being  but  an  offer,  and  susceptible  of 


71 

revocation  at  any  time  before  being  acted  upon,  it  must 
follow  that  the  death  of  the  promisor,  before  the  offer  is 
acted  upon,  is  a  revocation  of  the  offer.  This  is  clearly 
so  upon  principle.  The  subscription  or  note  is  held  to  be  a 
mere  offer  until  acted  upon,  because  until  then  there  is  no 
mutuality.  The  continuance  of  an  offer  is  in  the  nature  of 
its  constant  repetition,  which  necessarily  requires  some  one 
capable  of  making  a  repetition.  Obviously,  this  can  no  more 
be  done  by  a  dead  man  than  a  contract  can,  in  the  first  in- 
stance, be  made  by  a  dead  man. 
Judgment  reversed. 

Offer  is  made  irrevocable  by  acceptance 

HICKEY  v.  O'BRIEN 
123  Mich.  611  (1900) 

Appeal  from  a  judgment  for  plaintiff.  Action  of 
replevin. 

Kreutzberger  &  Crabbe  were  engaged  in  the  business 
of  selling  ice  in  Saginaw,  Michigan.  Lucas  &  Co.  were  also 
engaged  in  the  ice  business  with  facilities  for  putting  up  ice 
in  large  quantities.  On  March  1,  1895,  Lucas  &  Co.  entered 
into  an  agreement  with  Kreutzberger  &  Crabbe  whereby 
Lucas  &  Co.  agreed  to  furnish  Kreutzberger  &  Crabbe  '"with 
all  the  ice  that  they  may  require  to  carry  on  their  ice  busi- 
ness in  said  city  for  the  period  of  five  years"  at  a  certain 
price  to  be  paid  monthly,  etc.  On  their  part  Kreutzberger 
&  Crabbe  agreed  to  purchase  "all  the  ice  necessary  to  carry 
on  their  ice  business  in  said  city  for  the  period  of  five 
years,"  etc. 

Kreutzberger  &  Crabbe  continued  to  conduct  the  ice 
business  until  Dec.  19,  1896,  when  the  plaintiff  Hickey  claims 
to  have  purchased  the  property  of  the  firm.  Thereupon 
Lucas  &  Co.  brought  an  action  against  Kreutzberger  & 
Crabbe  to  recover  damages  for  the  breach  of  contract  in  fail- 
ing to  continue  to  buy  ice.  Lucas  &  Co.'s  manner  of  proceed- 
ing was  to  attach  the  property  which  had  been  transferred  to 
Hickey,  alleging,  of  course,  that  it  was  an  improper  transfer 
and  did  not  divest  Lucas  &  Co.  of  their  rights  against  the 
property  as  the  property  of  Kreutzberger  &  Crabbe.  The 
attachment  was  made  by  the  Deputy  Sheriff  O'Brien  at  the 
instigation  of  Lucas  &  Co. 


72 

This  case  is  an  action  of  replevin  to  recover  the  property 
brought  by  Hickey  who  claims  the  property  by  the  said 
purchase  against  O'Brien  who  has  possession  under  the 
attachment  proceedings.  The  question  for  decision  is 
whether  Kreutzberger  &  Crabbe  were  bound  by  their  con- 
tract to  buy  ice  from  Lucas  &  Co.  during  the  five  year 
period.  If  they  were,  then  Lucas  &  Co.  had  the  right  to 
attach  the  property  in  question  and  their  agent  O'Brien  was 
properly  in  possession  and  consequently  Hickey  would  have 
no  just  claim  against  O'Brien  for  possession  of  the  prop- 
erty. At  the  trial  it  was  conceded  that  Kreutzberger  & 
Crabbe  had  paid  for  all  ice  delivered,  the  only  question  in 
dispute  being  whether  they  were  bound  to  purchase  ice  for 
the  balance  of  the  five  years.  In  the  lower  court  judgment 
was  for  the  plaintiff  Hickey  thereby  holding  that  Kreutz- 
berger &  Crabbe  were  not  bound  for  the  five  years.  The 
defendant  appealed  alleging  erroneous  instructions  to  the 
jury  by  the  trial  court. 

The  instruction  of  the  court  below  was  based  on  a 
view  that  the  contract  did  not  bind  Kreutzberger  &  Crabbe 
to  take  ice  for  any  stated  time.  If  the  circuit  judge  was 
right  in  this,  the  other  questions  in  the  case  appear  to  us 
of  little  moment;  for,  if  the  contract  be  so  construed,  there 
is  no  indebtedness  to  Lucas  &  Co.  to  support  the  attach- 
ment, and  they  were  not,  therefore,  in  a  position  to  question 
the  bona  fides  of  the  transaction.  If,  on  the  other  hand,  the 
contract  bound  Kreutzberger  &  Crabbe  to  take  ice  at  the 
fixed  price  for  five  years,  it  can  scarcely  be  claimed  that 
the  instruction  of  the  court  below  was  correct.  The  cases 
which  deal  with  contracts  to  supply  goods  to  answer  the 
needs  of  business  are  not  in  entire  harmony.  In  Bailey  v. 
Austrian,  19  Minn.  535,  it  was  held  that  a  contract  to 
supply  plaintiffs  with  all  the  pig  iron  wanted  by  them  until 
a  certain  date  was  nudum  pactum;  as  plaintiffs  did  not 
engage  to  want  any  quantity  whatever.  A  similar  holding 
was  made  in  Iowa  in  the  case  of  Drake  v.  Vorse,  52  Iowa 
417  (3  N.  W.  465).  In  Cooper  v.  Wheel  Co.,  94  Mich. 
272  (54  N.  W.  39,  34  Am.  St.  Rep.  341),  we  had  occasion 
to  consider  the  case  of  Bailey  v.  Austrian,  but  did  not  in 
terms  decide  whether  such  engagement  bound  the  orderer  to 
take  any  particular  quantity.     In  National  Furnace  Co.  v. 


73 

Keystone  Manfg.  Co.,  110  111.  427,  the  case  of  Bailey  v. 
Austrian  is  considered  as  to  its  bearing  on  the  question  here 
involved.  The  Court  points  out  that  in  the  Bailey  case  stress 
is  laid  on  the  word  "want."  In  the  Illinois  case  cited,  the 
plaintiff  agreed  to  sell  to  the  defendant  all  the  iron  needed 
in  its  business  during  the  three  ensuing  years  at  $22.35  per 
ton.  The  defendant  agreed  to  take  its  year's  supply  at  that 
price.     The  Court  said  : 

"We  do  not  regard  the  contract  void  on  the  ground 
stated.  It  is  true  that  appellee  was  only  bound  by  the  con- 
tract to  accept  of  appellant  the  amount  of  iron  it  needed 
for  use  in  its  business;  but  a  reasonable  construction  must 
be  placed  on  this  part  of  the  contract,  in  view  of  the  situa- 
tion of  the  parties.  Appellee  was  engaged  in  a  large  manu- 
facturing business,  necessarily  using  a  large  quantity  of  iron 
in  the  transaction  of  its  business.  It  is  not  to  be  presumed 
that  appellee  would  close  its  business,  and  need  no  iron ; 
but,  on  the  contrary,  the  reasonable  presumption  would  be 
that  the  business  would  be  continued,  and  appellee  would 
necessarily  need  the  quantity  of  iron  which  it  had  been  in 
the  habit  of  using  during  previous  years.  It  cannot  be  said 
that  appellee  was  not  bound  by  the  contract.  It  had  no 
right  to  purchase  iron  elsewhere  for  use  in  its  business.  If 
it  had  done  so,  appellant  might  have  maintained  an  action 
for  a  breach  of  the  contract.  It  was  bound  by  the  contract 
to  take  of  appellant,  at  the  price  named,  its  entire  supply 
of  iron  for  the  year;  that  is,  such  a  quantity  of  iron,  in 
view  of  the  situation  and  business  of  appellee,  as  was 
reasonably  required  and  necessary  in  its  manufacturing 
business." 

In  the  present  case,  we  think  the  true  construction  is 
that  Kreutzberger  &  Crabbe  undertook  to  take  ice  of  Lucas 
&  Co.  for  the  period  of  five  years ;  that  the  quantity  which 
thev  agreed  to  take  was  to  be  measured  by  the  necessities 
of  their  business,  but  that  this  presupposed  that  they  would 
have  a  business  for  the  time  agreed. 

The  judgment  will  be  reversed,  and  a  new  trial  ordered. 


A 


Chapter  II 
SEAL  AND  CONSIDERATION 

Seal 

LORAH  v.  NISSLEY, 

156  Pa.  329  (1893). 

Appeal  from  an  order  opening  a  judgment.  A  rule 
to  open  judgment  was  entered  on  a  note  alleged  to  be 
under  seal.     The  note  was  in  the  following  form : 

Mount  Joy,  Pa.,  August  22,  1881. 
"$200.00. 

"Five  months  after  date  I  promise  to  pay  to  Jacob  E.  Lorah, 
or  order,  at  the  First  National  Bank  of  Mount  Joy,  Two  Hundred 
Dollars  and  without  defalcation  or  stay  of  execution,  value  received. 
And  I  do  hereby  confess  judgment  for  the  said  sum,  costs  of  suit, 
and  release  of  all  errors,  waving  inquisition  and  confess  condem- 
nation of  real  estate.  And  I  do  further  waive  all  exemption  laws, 
and  agree  that  the  same  may  be  levied  by  attachment  upon  wages 
for  labor  or  otherwise. 
"Witness:  "HENRY  B.  NISSLEY,     Seal. 

"George  Shiers.  "Seal." 

The  word  "seal"  following  the  signature  of  the  maker 
was  printed.  The  court  held  that  the  note  was  not  under 
seal,  and  permitted  the  defendant  to  plead  the  statute  of 
limitations. 

Mitchell,  C.  J. :  The  days  of  actual  sealing  of  legal 
documents,  in  its  original  sense  of  the  impression  of  an 
individual  mark  or  device  upon  wax  or  wafer,  or  even  on 
the  parchment  or  paper  itself,  have  long  gone  by.  It  is 
immaterial  what  device  the  impression  bears,  Alexander  v. 
Jameson,  5  Bin.  238,  and  the  same  stamp  may  serve  for 
several  parties  in  the  same  deed.  Not  only  so,  but  the  use 
of  wax  has  almost  entirely  and  even  of  wafers  very  largely 
ceased.  In  short,  sealing  has  become  constructive  rather 
than  actual,  and  is  in  a  great  degree  a  matter  of  intention. 
Tt  was  said  more  than  a  cpnturv  a?o  in  McDill's  Lessee  v. 
McDill,  1  Dal.  63,  that  "the  signing  of  a  deed  is  now  the 

(74) 


75 

material  part  of  the  execution ;  the  seal  has  become  a  mere 
form,  and  a  written  or  ink  seal,  as  it  is  called,  is  good;" 
and  in  Long  v.  Ramsay,  1  S.  &  R.  72,  it  was  said  by 
Tilghman,  C.  J.,  that  a  seal  with  a  flourish  of  the  pen  "is 
not  now  to  be  questioned."  Any  kind  of  flourish  or  mark 
will  be  sufficient  if  it  be  intended  as  a  seal.  "The  usual 
mode,"  said  Tilghman,  C.  J.,  in  Taylor  v.  Glaser,  2  S.  &  R. 
502,  "is  to  make  a  circular,  oval,  or  square  mark,  opposite 
to  the  name  of  the  signer;  but  the  shape  is  immaterial." 
Accordingly  it  was  held  in  Hacker's  Appeal,  121  Pa.  192, 
that  a  single  horizontal  dash,  less  than  an  eighth  of  an  inch 
long,  was  a  sufficient  seal,  the  context  and  the  circum- 
stances showing  that  it  was  so  intended.  On  the  other 
hand,  in  Taylor  v.  Glaser,  supra,  a  flourish  was  held  not  a 
seal,  because  it  was  put  under  and  apparently  intended 
merely  as  a  part  of  the  signature.  So  in  Duncan  v.  Duncan, 
1  Watts  322,  a  ribbon  inserted  through  slits  in  the  parch- 
ment, and  thus  carefully  prepared  for  sealing,  was  held 
not  a  seal,  because  the  circumstances  indicated  the  intent  to 
use  a  well-known  mode  of  sealing,  by  attaching  the  ribbon 
to  the  parchment  with  wax  or  wafer,  and  the  intent  had  not 
been  carried  out. 

These  decisions  establish  beyond  question  that  any 
flourish  or  mark,  however  irregular  or  inconsiderable,  will 
be  a  good  seal,  if  so  intended,  and  a  fortiori  the  same  result 
must  be  produced  by  writing  the  word  "seal,"  or  the  letters 
"L.  S.,"  meaning  originally  locus  sigilli;  but  now  having 
acquired  the  popular  form  of  an  arbitrary  sign  for  a  seal, 
just  as  the  sign  "&"  is  held  and  used  to  mean  "and"  by 
thousands  who  do  not  recognize  it  as  the  Middle  Ages' 
manuscript  contraction  for  the  Latin  "et." 

If,  therefore,  the  word  "seal"  on  the  note  in  suit  had 
been  written  by  Nissley  after  his  name,  there  could  have 
been  no  doubt  about  its  efficacy  to  make  a  sealed  instru- 
ment. Does  it  alter  the  case  any  that  it  was  not  written  by 
him,  but  printed  beforehand?  We  cannot  see  any  good 
reason  why  it  should.  Ratification  is  equivalent  to  ante- 
cedent authoritv,  and  the  writing  of  his  name  to  the  left  of 


76 

the  printed  word,  so  as  to  bring  the  latter  into  the  usual 
and  proper  place  for  a  seal,  is  ample  evidence  that  he 
adopted  the  act  of  the  printer  in  putting  it  there  for  a  seal. 
The  note  itself  was  a  printed  form,  with  blank  spaces  for  the 
particulars  to  be  filled  in,  and  the  use  of  it  raises  a  con- 
clusive presumption  that  all  parts  of  it  were  adopted  by  the 
signer,  except  such  as  were  clearly  struck  out  or  intended  to 
be  canceled  before  signing.  The  pressure  of  business  life 
and  the  subdivision  of  labor  in  our  day  have  brought  into 
use  many  things  ready-made  by  wholesale  which  our  ances- 
tors made  singly  for  each  occasion,  and  among  others  the 
conveniences  of  printed  blanks  for  the  common  forms  of 
written  instruments.  But  even  in  the  early  days  of  the 
century  the  act  of  sealing  was  commonly  done  by  adoption 
and  ratification  rather  than  as  a  personal  act,  as  we  are 
told  by  a  very  learned  and  experienced,  though  eccentric, 
predecessor,  in  language  that  is  worth  quoting  for  its 
quaintness :  "I  Hi  robus  et  aes  triplex.  He  was  a  bold  fel- 
low who  first  in  these  colonies,  and  particularly  in  Pennsyl- 
vania, in  time  whereof  the  memory  of  man  runneth  not  to 
the  contrary,  substituted  the  appearance  of  a  seal  by  the 
circumflex  of  a  pen,  which  has  been  sanctioned  by  usage 
and  the  adjudication  of  the  courts,  as  equilpollent  with  a 
stamp  containing  some  effigies  or  inscription  on  stone  or 
metal.  *  *  *  How  could  a  jury  distinguish  the  hiero- 
glyphic or  circumflex  of  a  pen  by  one  man  from  another? 
In  fact,  the  circumflex  is  usually  made  by  the  scrivener 
drawing  the  instrument,  and  the  word  seal  inscribed  within 
it."  Brackenridge,  J.,  in  Alexander  v.  Jameson,  5  Bin.  238, 
244. 

We  are  of  the  opinion  that  the  note  in  suit  was  duly 
sealed. 

Order  opening  judgment  reversed  and  judgment  re- 
instated. 


Editor's  Note.— In  Hacker's  Appeal,  121  Pa.  192,  one  Ellen  Wain 
ended  a  document  by  the  phrase  "I  hereunto  affix  my  hand  and  seal" 

and  signed  as  follows :  "Ellen  Wain "  Held,  that  since  there  was 

an   expressed   intention  of   sealing  the   document,   the   dash   would 
be  construed  as  a  sufficient  seal. 


77 

CONSIDERATION 

Definition  of  and  necessity  for  consideration 

LOUISA  W.  HAMER,  APPELLANT,  v.  FRANKLIN 

SIDWAY,  AS  EXECUTOR,  ETC.,  RESPONDENT, 
124  N.  Y.  538  (1891). 

Appeal  from  judgment  for  plaintiff. 

This  action  was  brought  upon  an  alleged  contract. 

The  plaintiff  presented  a  claim  to  the  executor  of  Wil- 
liam E.  Story,  Sr.,  for  $5,000  and  interest  from  February 
6th,  1875.  She  acquired  it  through  several  mesne  assign- 
ments from  William  E.  Story,  second.  The  claim  being 
rejected  by  the  executor,  this  action  was  brought.  It  ap- 
pears that  William  E.  Story,  Sr.,  was  the  uncle  of  William 
E.  Story,  second ;  that  at  the  celebration  of  the  golden  wed- 
ding of  Samuel  Story  and  wife,  father  and  mother  of  Wil- 
liam E.  Story,  Sr.,  on  March  20th,  1869,  in  the  presence 
of  the  family  and  invited  guests  he  promised  his  nephew 
that  if  he  would  refrain  from  drinking,  using  tobacco, 
swearing  and  playing  cards  or  billiards  for  money  until 
he  became  twenty-one  years  of  age  he  would  pay  him  a  sum 
of  $5,000.  The  nephew  assented  thereto  and  fully  per- 
formed the  conditions  inducing  the  promise.  When  the 
nephew  arrived  at  the  age  of  twenty-one  years,  and  on 
January  31,  1875,  he  wrote  to  his  uncle  informing  him  that 
he  had  performed  his  part  of  the  agreement,  and  had  there- 
by become  entitled  to  the  sum  of  $5,000.  The  uncle  re- 
ceived the  letter,  and  a  few  days  lated,  and  on  February  6th, 
he  wrote  and  mailed  to  his  nephew  the  following  letter : 

Buffalo,  February  6,  1875. 
"W.  E.  Story,  Jr. 

"Dear  Nephew:  Your  letter  of  the  31st  ult.  came  to  hand  all 
right,  saying  that  you  had  lived  up  to  the  promise  made  to  me  sev- 
eral years  ago.  I  have  no  doubt  but  you  have,  for  which  you  shall 
have  $5000,  as  I  promised  you.  I  had  the  money  in  the  bank  the 
day  you  was  twenty-one  years  old  that  I  intend  for  you,  and  you 
shall  have  the  money  certain.  Now,  Willie,  I  do  not  intend  to  in- 
terfere with  this  money  in  any  way  till  I  think  you  are  capable  of 
taking  care  of  it,  and  the  sonner  that  time  comes  the  better  it  will 


78 

please  me.    I  would  hate  very  much  to  have  you  start  out  in  some 
adventure  that  you  thought  all  right,  and  lose  this  money  in  one 


year. 


* 


"Truly  yours, 

"W.  E.  STORY. 
"P.  S.    You  can  consider  this  money  on  interest." 

The  nephew  received  the  letter,  and  thereafter  con- 
sented that  the  money  should  remain  with  his  uncle,  jn 
accordance  with  the  terms  and  conditions  of  the  letters.  The 
uncle  died  on  January  29,  1887,  without  having  paid  over 
to  his  nephew  any  portion  of  the  said  $5,000  and  interest. 

Parker,  J. :  The  question  which  provoked  the  most 
discussion  by  counsel  on  this  appeal,  and  which  lies  at  the 
foundation  of  plaintiff's  asserted  right  of  recovery,  is 
whether  by  virtue  of  a  contract  defendant's  testator,  William 
E.  Story,  became  indebted  to  his  nephew,  William  E.  Story, 
second,  on  his  twenty-first  birthday  in  the  sum  of  $5,000. 
The  trial  court  found  as  a  fact  that  "on  March  20,  1869, 
*  *  *  William  E  Story  agreed  to  and  with  William  E. 
Story,  second,  that  if  he  would  refrain  from  drinking  liquor, 
using  tobacco,  swearing  and  playing  cards  or  billiards  for 
money  until  he  should  become  twenty-one  years  of  age, 
then  he,  the  said  William  E.  Story,  would  at  that  time  pay 
him,  the  said  William  E.  Story,  second,  the  sum  of  $5,000 
for  such  refraining,  to  which  the  said  William  E.  Story, 
second,  agreed,"  and  that  he  "in  all  things  fully  performed 
his  part  of  said  agreement." 

The  defendant  contends  that  the  contract  was  without 
consideration  to  support  it,  and  therefore  invalid.  He  as- 
serts that  the  promisee  by  refraining  from  the  use  of  liquor 
and  tobacco  was  not  harmed,  but  benefited ;  that  that  which 
he  did  was  best  for  him  to  do  independently  of  his  uncle's 
promise,  and  insists  that  it  follows  that  unless  the  promisor 
was  benefited  the  contract  was  without  consideration.  A 
contention  which,  if  well  founded,  would  seem  to  leave  open 
for  controversy  in  many  cases  whether  that  which  the 
promisee  did  or  omitted  to  do  what  in  fact,  of  such  benefit 
to  him  as  to  leave  no  consideration  to  support  the  enforce- 


79 

ment  of  the  promisor's  agreement.  Such  a  rule  could  not 
be  tolerated,  and  is  without  foundation  in  the  law.  The 
Exchequer  Chamber  in  1875  denned  consideration  as  fol- 
lows: "A  valuable  consideration  in  the  sense  of  the  law 
may  consist  either  in  some  right,  interest,  profit  or  benefit 
accruing  to  the  one  party,  or  some  forbearance,  detriment, 
loss  or  responsibility  given,  suffered  or  undertaken  by  the 
other."  Courts  "will  not  ask  whether  the  thing  which 
forms  the  consideration  does,  in  fact,  benefit  the  promisee  or 
a  third  party,  or  is  of  any  substantial  value  to  any  one.  It 
is  enough  that  something  is  promised,  done,  forborne,  or 
suffered  by  the  party  to  whom  the  promise  is  made  as  con- 
sideration for  the  promise  made  to  him."  (Anson's  Prin.  of 
Con.  63.) 

"In  general  a  waiver  of  any  legal  right  at  the  request 
of  another  party  is  a  sufficient  consideration  for  a  promise." 
(Parsons  on  Contracts,  444.) 

"Any  damage  or  suspension  or  forbearance  of  a  right 
will  be  sufficient  to  sustain  a  promise."  (Kent,  Vol.  II,  465, 
12th  ed.) 

Pollock,  in  his  work  on  Contracts,  page  166,  after  cit- 
ing the  definition  given  by  the  Exchequer  Chamber  already 
quoted,  says:  "The  second  branch  of  this  judicial  descrip- 
tion is  really  the  most  important  one.  Consideration  means 
not  so  much  that  one  party  is  profiting  as  that  the  other 
abandons  some  legal  right  in  the  present  or  limits  his  legal 
freedom  of  action  in  the  future  as  an  inducement  for  the 
promise  of  the  first." 

Now,  applying  this  rule  to  the  facts  before  us,  the 
promisee  used  tobacco,  occasionally  drank  liquor,  and  he 
had  a  legal  right  to  do  so.  That  right  he  abandoned  for  a 
period  of  years  upon  the  strength  of  the  promise  of  the 
testator  that  for  such  forbearance  he  would  give  him  $5,000. 
We  need  not  speculate  on  the  effort  which  may  have  been 
required  to  give  up  the  use  of  those  stimulants.  It  is  suf- 
ficient that  he  restricted  his  lawful  freedom  of  action  within 
certain  prescribed  limits  upon  the  faith  of  his  uncle's  agree- 


80 

ment,  and  now,  having  fully  performed  the  conditions  im- 
posed, it  is  of  no  moment  whether  such  performance  actually 
proved  a  benefit  to  the  promisor  and  the  Court  will  not 
inquire  into  it;  but  were  it  a  proper  subject  of  inquiry,  we 
see  nothing  in  this  record  that  would  permit  a  determina- 
tion that  the  uncle  was  not  benefited  in  a  legal  sense.  Few 
cases  have  been  found  which  may  be  said  to  be  precisely 
in  point,  but  such  as  have  been  support  the  position  we  have 
taken. 

The  judgment  is  affirmed,  with  costs  payable  out  of  the 
estate. 


Surrender  of  right  as  a  consideration 

WHITE,  EXECUTOR  OF  JOHN  BLUETT,  v. 
WILLIAM  BLUETT, 

23  L.  J.  R.  Exch.  N.  S.  36  (1853). 

Suit  was  brought  upon  a  promissory  note  made  by  the 
defendant  payable  to  the  testator,  John  Bluett.  The  de- 
fendant pleaded  in  answer  to  the  plaintiff's  claim  as  follows  : 

*  *  *  And  the  defendant  saith  that  the  said  J. 
Bluett  was  the  father  of  the  defendant,  and  that  after- 
ward, and  after  the  accruing  of  the  causes  of  action  to 
which  this  plea  is  pleaded,  and  before  this  suit,  and  in 
the  lifetime  of  the  said  J.  Bluett,  the  defendant  complained 
to  his  said  father  that  he,  the  defendant,  had  not  received 
at  his  hands  so  much  money  or  so  many  advantages  as 
the  other  children  of  the  said  J.  Bluett,  and  certain  contro- 
versies arose  between  the  defendant  and  his  said  father 
concerning  the  premises,  and  the  said  J.  Bluett  afterward 
admitted  and  declared  to  the  defendant  that  his,  the  de- 
fendant's, said  complaints  were  well  founded,  and  therefore, 
afterward,  etc..  it  was  agreed  by  and  between  the  said 
J.  Bluett  and  the  defendant  that  the  defendant  should  for- 


81 

ever  cease  to  make  such  complaints,  and  that  in  considera- 
tion thereof,  and  in  order  to  do  justice  to  the  defendant, 
and  also  out  of  his,  the  said  J.  Bluett's  natural  love  and 
affection  toward  the  defendant,  he,  the  said  J.  Bluett,  would 
discharge  the  defendant  of  and  from  all  liability  in  respect 
of  the  causes  of  action  to  which  this  plea  is  pleaded,  and 
would  accept  the  said  agreement  on  his,  the  defendant's 
part,  in  full  satisfaction  and  discharge  of  the  said  last- 
mentioned  causes  of  action ;  and  the  defendant  further  saith 
that  afterward,  and  in  the  lifetime  of  the  said  J.  Bluett, 
and  before  this  suit,  he,  the  said  J.  Bluett,  did  accept  of 
and  from  the  defendant  the  said  agreement  as  aforesaid  in 
full  satisfaction  and  discharge  of  such  mentioned  causes 
of  action. 

To  this  plea  the  plaintiff  demurred. 

Pollock,  C.  B. :  The  plea  is  clearly  bad.  By  the 
argument  a  principle  is  pressed  to  an  absurdity,  as  a  bub- 
ble is  blown  until  it  bursts.  Looking  at  the  words  merely, 
there  is  some  foundation  for  the  argument,  and,  following 
the  words  only,  the  conclusion  may  be  arrived  at.  It  is 
said  the  son  had  a  right  to  an  equal  distribution  of  his 
father's  property,  and  did  complain  to  his  father  because  he 
had  not  an  equal  share,  and  said  to  him,  "I  will  cease  to 
complain  if  you  will  not  sue  upon  this  note."  Whereupon 
the  father  said,  "If  you  will  promise  me  not  to  complain  I 
will  give  you  up  the  note."  If  such  a  plea  as  this  could  be 
supported,  the  following  would  be  a  binding  promise :  A 
man  might  complain  that  another  person  used  the  public 
highway  more  than  he  ought  to  do,  and  that  other  might  say, 
"Do  not  complain  and  I  will  give  you  £5."  It  is  ridicu- 
lous to  suppose  that  such  promises  could  be  binding.  So, 
if  the  holder  of  a  bill  of  exchange  were  suing  the  acceptor, 
and  the  acceptor  were  to  complain  that  the  holder  had 
treated  him  hardly,  or  that  the  bill  ought  never  to  have 
been  circulated,  and  the  holder  were  to  say,  "Now,  if  you 
will  not  make  any  more  complaints  I  will  not  sue  you." 
Such  a  promise  would  be  like  that  now  set  up.     In  reality, 


82 

there  was  no  consideration  whatever.  The  son  had  no  right 
to  complain,  for  the  father  might  make  what  distribution 
of  his  property  he  liked ;  and  the  son's  abstaining  from  do- 
ing what  he  had  no  right  to  do  can  be  no  considera- 
tion.    *     *     * 

Judgment  for  the  plaintiff. 


Forbearance,  disadvantage  suffered,  etc.,  as  a 
consideration 

MARY  BURGESSER  v.  WENDEL, 

73  N.  J.  L.  286  (1906). 

Swayze,  J. :  The  district  court  found  that  the  plain- 
tiff had  resided  with  the  defendant  prior  to  his  marriage; 
that  upon  that  event  he  provided  another  house  for  her,  and 
promised  to  pay  her  a  certain  sum  (afterwards  fixed  at 
$10)  weekly  as  long  as  she  should  continue  to  reside  in  the 
new  house ;  that  she  was  still  residing  in  the  house,  and  that 
the  defendant  had  failed  to  pay  the  weekly  allowance  for 
ten  weeks.  He  rendered  judgment  in  favor  of  the  plaintiff 
for  $80. 

It  is  now  argued  on  behalf  of  the  defendant  that  the 
facts  as  found  do  not  warrant  the  judgment,  because  they 
fail  to  show  a  consideration  and  because,  to  state  the  point 
in  the  language  of  the  appellant's  brief,  "there  was  no 
agreement  in  this  case  as  contemplated  by  the  statute  of 
frauds,  because  there  was  simply  a  voluntary  payment  with- 
out consideration."  Before  the  trial  court  this  objection 
was  stated  to  be  that  the  contract  was  not  to  be  performed 
within  one  year. 

We  think  the  case  shows  an  agreement  and  not  a  mere 
voluntary  payment.  There  was  an  arrangement  between 
the  parties  for  a  change  of  the  plaintiff's  residence,  and  upon 
this  arrangement  she  acted.     If  this  were  not  so,  the  point 


83 

was  not  made  in  the  trial  court,  and  cannot  now  be  con- 
sidered. 

There  was  a  legal  consideration  for  the  defendant's 
promise.  The  change  of  the  plaintiff's  residence  may  have 
been  a  benefit  to  the  defendant  or  a  detriment  to  the  plain- 
tiff, or  both.     *     *     * 

We  find  no  errors,  and  the  judgment  must  be  affirmed, 
with  costs. 


Forbearance,  disadvantage  suffered,  etc.,  as  a 
consideration 

MELROY  v.  KEMMERER,  APPELLANT, 

218  Pa.  381  (1907). 

Appeal  from  judgment  for  plaintiff. 

Opinion  by  Chief  Justice  Mitchell.  It  was  said  in 
Ebert  v.  Johns,  206  Pa.  395,  that  the  rule  that  the  accept- 
ance of  a  smaller  sum  for  a  debt  presently  due,  though 
agreed  and  expressed  to  be  payment  in  full,  is  not  a  good 
accord  and  satisfaction,  was  a  deduction  of  scholastic  logic 
and  was  always  regarded  as  more  logical  than  just,  and 
hence  any  circumstance  of  variation  is  sufficient  to  take  a 
case  out  of  the  rule.  As  illustrations  of  such  circumstances 
of  variation,  it  has  been  held  that  payment  a  day,  or  even  an 
hour,  before  the  debt  is  due,  or  at  a  different  place,  or  of 
a  certainty  in  amount  where  the  amount  of  the  debt  is  un- 
certain, or  payment  of  even  a  part  by  a  third  person,  or 
additional  security  of  any  kind,  such  as  the  indorsement  of 
a  note  by  a  third  person,  or  payment  in  chattels  or  any- 
thing other  than  money,  will  be  a  good  discharge  of  the 
whole  by  way  of  accord  and  satisfaction. 

The  rule  itself  is  founded  on  the  want  of  considera- 
tion for  the  agreement.  As  a  part  can  never  be  equal  to 
the  whole,  the  payment  of  a  part  of  the  debt  presently  due 


84 

gives  the  creditor  nothing  that  he  was  not  entitled  to  and  de- 
prives the  debtor  of  nothing  he  was  not  bound  to  part  with 
before,  and  therefore  there  is  no  consideration.  The  logic 
is  unimpeachable,  but  it  fails  to  take  into  consideration 
the  practical  importance  of  the  difference  between  the  right 
to  a  thing  and  the  actual  possession  of  it.  As  said  in  Ebert 
v.  Johns,  "to  a  merchant  with  a  note  coming  due,  $5,000 
before  three  o'clock  to-day,  which  will  save  his  commer- 
cial credit,  may  well  be  worth  more  than  $20,000  to-morrow, 
after  his  note  has  gone  to  protest."  If  the  debt  is  not  due 
until  to-morrow,  the  payment  of  the  lesser  sum  under  all 
the  cases  will  be  a  good  accord  and  satisfaction,  but  if  the 
debt  was  due  yesterday,  but  the  debtor  can  only  pay  part 
to-day,  the  benefit  to  the  creditor  of  getting  that  part  now, 
rather  than  the  whole  when  it  is  too  late,  is  just  as  great, 
and  whatever  conclusion  the  scholastic  logic  and  theoretical 
reasoning  may  lead  to,  the  importance  of  the  practical 
result  is  a  matter  for  the  creditor  to  decide  for  himself, 
and,  having  so  decided  and  got  the  benefit  of  it,  justice 
and  common  honesty  ought  to  hold  him  to  his  agreement. 
For  this  reason,  the  force  of  which  is  universally  accepted, 
the  courts,  so  far  as  they  could  without  sacrifice  of  the 
maxim  of  stare  decisis,  have  brought  the  law  into  closer 
accord  with  modern  business  principles. 

In  the  present  case  the  debtor,  being  in  failing  circum- 
stances and  contemplating  bankruptcy,  offered  the  plain- 
tiffs 30  per  cent,  of  his  debt  as  a  settlement  in  full.  The 
plaintiffs  dissuaded  him  from  going  into  bankruptcy,  ac- 
cepted his  alternative  offer,  received  the  money  and  closed 
the  account.  They  have  now  brought  this  suit  for  the 
balance.  In  the  absence  of  any  expressed  decision  in  this 
State  on  this  point,  the  learned  judge  below  did  not  feel  at 
liberty  to  depart  from  the  general  rule.  We  have  no  such 
hesitation.  The  exact  point  is  whether  the  debtor's  relin- 
quishment of  his  intention  to  seek  a  discharge  in  bank- 
ruptcy and  his  payment  of  30  per  cent,  instead  constitute 


85 

a  sufficient  consideration  to  bind  the  creditor  to  the  agree- 
ment.   On  that  point  we  have  no  doubt. 

A  valuable  consideration  may  consist  in  some  right, 
interest  or  benefit  to  one  party,  or  some  loss,  detriment  or 
responsibility  resulting  actually  or  potentially  to  the  other. 
Bouvier's  Law  Diet.  "If  there  is  any  advantage  to  the 
creditor,  the  law  will  not  say  the  adequacy  of  the  considera- 
tion."   Fowler  v.  Smith,  153  Pa.  639. 

The  accord  in  this  case  was  good  on  both  branches. 
By  it  the  creditors  got  a  sum  certain,  instead  of  the  chance 
of  an  uncertain  dividend  in  bankruptcy;  on  the  other  hand, 
the  debtor  accepted  the  responsibility  of  paying  a  sum  cer- 
tain whether  his  assets  were  sufficient  or  not,  and  gave 
up  his  right  to  a  release  of  his  future  assets,  and  to  a  dis- 
charge from  his  whole  debt  without  regard  to  the  suffi- 
ciency of  his  present  assets. 

The  decisions  on  this  exact  point  in  other  States  are 
not  numerous,  but  the  general  trend  is  uniform  to  the  result 
we  have  reached.  In  Hinckley  v.  Arey,  27  Me.  362,  it  was 
said  by  Tenny,  J. :  "In  this  case  the  plaintiff  was  informed 
that  the  defendant  contemplated  taking  the  benefit  of  the 
bankrupt  act,  which  was  then  in  force.  If  this  intention  had 
been  carried  out,  the  plaintiff  would  lose  the  whole  debt,  be- 
yond what  he  might  receive  as  a  dividend;  and  the  latter, 
judging  from  his  letter,  he  did  not  consider  as  very  valuable. 
To  save  himself  from  a  greater  loss  under  the  law,  he 
agreed  upon  the  terms  of  composition  offered.  The  de- 
fendant, upon  the  agreement  and  payment  to  Hubbard,  took 
no  further  steps  to  obtain  relief  under  the  bankrupt  law." 
It  was  accordingly  held  that  the  accord  and  satisfaction 
were  good.  In  Curtis  v.  Martin,  20  111.  557;  Engbretson  v. 
Seiberling,  122  Iowa  522;  Rive  v.  London,  etc.,  Mortgage 
Co.,  70  Minn.  77,  the  courts  went  still  further  and  held  the 
satisfaction  valid  where  the  debtor  was  insolvent  or  in 
failing  circumstances,  though  there  was  no  express  inten- 
tion to  seek  a  discharge  in  bankruptcy.  In  the  last-named 
case  it  was  held  that  an  agreement  on  behalf  of  the  estate 


86 

of  a  debtor  supposed  to  be  insolvent  was  good,  though  it 
turned  out  in  fact  that  it  was  solvent.  And  in  Pettigrew 
Co.  v.  Harmon,  45  Ark.  290,  the  principle  that  part  pay- 
ment by  a  third  person  makes  the  accord  valid  was  held  to 
govern  where  the  third  person  was  one  to  whom  the  debtor 
had  assigned  his  assets  for  the  payment  of  his  debts. 
Judgment  reversed. 


Forbearance,  disadvantage  suffered,  etc.,  as  a 
consideration 

WILLIAM  E.  SHERWIN  AND  OTHERS,  TRUSTEES, 


v.  SAMUEL  W.  FLETCHER, 
168  Mass.  413  (1897). 
Action  on  contract  on  the  following  agreement : 

"We,  the  undersigned  subscribers,  do  hereby  agree  to  pay  the 
sum  set  against  our  respective  names,  the  same  to  be  payable  under 
and  in  accordance  with  the  following  conditions,  namely: 

"1.  The  money  by  us  subscribed  is  to  be  used  for  the  purpose 
of  erecting  a  building  in  the  town  of  Ayer,  to  be  used  for  the  manu- 
facture of  boots  and  shoes. 

"2.  The  details  regarding  the  plan  under  which  the  subscribers 
hereto  shall  organize  themselves,  and  upon  which  said  building 
shall  be  erected  and  rented,  shall  be  hereafter  fixed  and  determined 
by  a  majority  in  numbers  and  interest  of  the  subscribers  hereto, 
at  a  meeting  to  be  duly  called  for  that  purpose. 

"3.  No  subscription  hereto  shall  be  binding  until  the  sum  of 
twelve  thousand   ($12,000)   dollars  shall  have  been  raised. 

"SAMUEL  W.  FLETCHER.    $200." 

The  declaration  alleged  that  the  defendant  signed  the 
above  contract  (a  copy  whereof  was  annexed)  and  thereby 
agreed,  in  consideration  of  other  parties  signing  similar 
agreements,  to  pay  such  person  or  persons  as  should  be 
determined  upon  by  the  majority  in  numbers  and  interest 
of  such  subscribers  the  sum  of  $200,  upon  the  terms  and 
conditions  therein  specified  and  set  forth;  that  the  sum  of 
$12,000  was  subscribed ;  that  at  a  meeting  of  such  directors, 
duly  notified  and  called  for  that  purpose,  it  was  determined 


87 

by  a  majority  in  numbers  and  interest  of  the  subscribers 
to  organize,  and  they  did  so  organize  under  the  name  of 
the  "Ayer  Building  Association" ;  that  the  plaintiffs  were 
duly  chosen  trustees,  and  by  votes  of  said  association  were 
duly  authorized  and  empowered  to  purchase  a  tract  of  land 
in  the  town  of  Ayer,  and  erect  thereon  a  building  for  the 
manufacture  of  boots  and  shoes,  and  to  collect  all  subscrip- 
tions; that,  relying  upon  the  promise  of  the  defendant,  and 
being  so  authorized  as  aforesaid,  they  did  purchase  a  tract 
of  land  in  the  town  of  Ayer  and  erect  thereon  a  building 
for  the  manufacture  of  boots  and  shoes,  and  demanded  of 
the  defendant  the  amount  of  his  said  subscription,  to  wit, 
the  sum  of  $200,  but  the  defendant  refused,  and  still  refuses 
to  pay  the  same. 

The  defendant  demurred  to  the  declaration,  assigning 
as  grounds  therefor:  1.  That  it  did  not  appear  by  said 
declaration  and  the  contract  annexed  thereto  that  the  de- 
fendant made  any  promise  or  agreement  to  pay  the  plain- 
tiffs, or  any  promise  or  agreement  upon  which  the  plaintiffs 
were  entitled  to  recover.  2.  That  the  plaintiffs  did  not 
allege  in  their  declaration,  nor  did  it  appear  by  the  contract, 
that  there  was  any  sufficient  consideration  for  the  defendant 
entering  into  the  contract. 

The  Superior  Court  overruled  the  demurrer,  and  the 
defendant  appealed  to  this  court. 

Allen,  J. :  The  demurrer  to  the  declaration  was  rightly 
overruled.  The  written  agreement  signed  by  the  defendant 
was  virtually  a  promise  to  pay  to  such  person  or  persons 
as  should  be  fixed  at  a  meeting  of  the  subscribers.  This 
promise  was  at  the  outset  an  offer,  but  when  steps  were 
taken  in  pursuance  of  Article  2,  and  a  plan  was  fixed  and 
determined  as  therein  provided,  and  the  plaintiffs  were 
chosen  trustees,  they  became  the  promisees ;  and  when  they 
proceeded  to  erect  a  building  in  reliance  upon  the  subscrip- 
tions of  the  defendant  and  others,  and  before  any  with- 
drawal or  retraction  by  him,  that  supplied  a  good  considera- 
tion, and  the  promise  became  valid  and  binding  in  law. 
Judgment  affirmed. 


Forbearance,  disadvantage  suffered,  etc.,  as  a 
consideration 

MARSHALLTOWN    STONE    CO.,    APPELLANT,    v. 
DES  MOINES  BRICK  MFG.  CO., 

114  Iowa  574  (1901). 

Action  on  contract.  A  demurrer  to  the  petition  was 
sustained,  and  judgment  rendered  against  the  plaintiff.  The 
plaintiff  appeals. 

Sherwin,  J.:  The  petition  alleges  that  in  August, 
1898,  the  plaintiff  was  about  to  enter  into  a  contract  to  fur- 
nish crushed  rock  for  use  in  a  certain  street  in  Des  Moines, 
then  about  to  be  paved ;  that  the  defendant  then  agreed  to 
pay  plaintiff  the  sum  of  25  cents  per  cubic  yard  for  the 
crushed  rock  used  in  paving  said  street,  on  condition  that 
the  plaintiff  would  not  enter  into  the  contemplated  contract 
nor  sell  any  crushed  rock  in  the  city  of  Des  Moines  during 
the  remainder  of  the  year  1898;  and  that  the  plaintiff 
carried  out  the  terms  of  this  agreement.  The  demurrer 
assails  the  petition  for  want  of  consideration,  and  on  the 
ground  that  the  agreement  was  against  public  policy  and 
void  because  tending  to  prevent  competition. 

The  consideration  for  the  agreement  on  the  part  of 
the  defendant  was  sufficient.  The  plaintiffs  agreed  to  and 
did  refrain  from  entering  into  the  contemplated  contract, 
and  refrained  from  selling  crushed  stone  in  the  city  of 
Des  Moines  during  the  remainder  of  the  year  1898.  It  is 
to  be  presumed  that  the  sale  of  stone  in  Des  Moines  would 
have  been  a  benefit  to  the  plaintiff,  and  that  by  not  doing 
so  he  suffered  a  loss.  Any  forbearance  practiced  by  a  party 
to  a  contract,  or  any  detriment  or  loss  suffered  by  him,  is 
sufficient  consideration  for  the  other's  promise.  In  the  case 
of  Chapin  v.  Brown,  83  Iowa  156,  relied  upon  by  appellee, 
the  plaintiff  sued  for  damages  because  the  defendants  had 
again  entered  the  butter  trade  after  agreeing  not  to  do  so. 
The  plaintiff  had  clearly  paid  nothing  for  the  promise,  and 
upon  the  execution  of  the  bare  agreement,  without  the  pay- 


89 

ment  of  a  cent,  he  had  at  once  established  a  lucrative  busi- 
ness ;  hence  had  not  f oreborn  or  suffered  anything. 

The  agreement  was  that  the  plaintiff  would  not  enter 
into  the  particular  contract  contemplated  for  furnishing 
crushed  stone  for  the  particular  job  of  paving  then  under 
way,  and  further  that  he  would  not  sell  said  material  in 
the  city  of  Des  Moines  during  the  period  of  about  five 
months.  It  was  limited  as  to  time,  place,  and  commodity. 
So  far  as  is  shown  by  the  petition,  there  was  no  attempt  to 
restrain  competition  in  furnishing  that  particular  product. 
There  might  have  been  a  large  number  of  others  anxious 
and  willing  to  supply  the  public  demand  for  crushed  rock. 
Nothing  appears  therefrom  which  in  the  least  indicates 
an  intention  to  oppress  or  create  a  monopoly  in  that  par- 
ticular product.  The  contract  was  therefore  not  void  as 
against  public  policy.  In  the  Chapin-Brown  case,  supra, 
it  appeared  that  all  the  merchants  of  Storm  Lake  had  en- 
tered into  an  agreement,  and  it  might  well  be  said  that  it 
was  a  contract  creating  a  monopoly,  and  hence  against  public 
policy. 

The  judgment  is  reversed. 


Composition  with  creditors — Promise  for  a  promise 
ROBERT  v.  BARNUM  ET  AL., 
80  Ky.  28  (1882). 
Appeal  from  judgment  for  defendants   (appellees). 
Pryor,  J.:  The  validity  of  agreements  between  credi- 
tors, entered  into  for  the  purpose  of  releasing  an  insolvent 
debtor,  when  made  in  good  faith,  cannot  be  questioned ;  and 
when  the  debtor  has  in  this  manner  procured  his  release, 
and  is  willing  and  offers  to  comply  with  the  terms  of  the 
agreement,  there  is  no  reason  why  it  should  not  be  enforced. 
The  basis  of  settlement  in  this  case  was,  that  ninety  per 


90 

cent,  of  the  creditors  for  merchandise  sold  the  Jcbtor 
should  sign  the  composition  agreement.  Perfect  equality, 
unless  otherwise  agreed  upon,  should  exist  between  the 
creditors  named,  the  one  having  no  advantage  over  the 
other.  The  execution  of  the  agreement  by  one  creditor  is 
the  inducement  for  the  others  to  do  likewise.  All  agreeing 
to  relinquish  their  claims  for  a  particular  purpose;  that  is, 
to  relieve  the  debtor  from  his  insolvent  condition,  and  the 
agreement  to  release  by  one  is  a  sufficient  consideration  for 
the  release  by  the  other.  The  creditors  are  the  parties 
contracting  for  the  relief  of  the  insolvent,  and  when  the 
latter  complies,  by  paying  or  tendering  the  money,  or  what- 
ever is  required  to  release  him  from  his  obligations  by  the 
terms  of  the  settlement  composition,  the  creditor  is  bound 
to  accept  it.  An  agreement  by  the  creditor  with  his  debtor 
to  take  less  than  his  debt,  based  on  no  other  consideration 
than  to  relieve  him  from  his  pecuniary  embarrassment,  can- 
not be  en  forced  •;  but  when  the  creditors  enter  into  an 
agreement  with  each  other  that  they  will  relieve  the  debtor 
by  releasing  a  part  of  their  demands,  the  agreement  can  be 
enforced  even  by  the  debtor,  who  can  accept  the  terms  fixed 
by  his  creditors,  and  comply  with  the  agreement.  The 
creditors  contracted  with  each  other  in  this  case  to  the 
effect  that  "they  would  accept  twenty-five  cents  on  a  dollar 
cash,  in  full  settlement  of  our  claims  to  date.  This  paper 
is  not  binding  unless  signed  by  creditors  representing  ninety 
per  cent,  of  his  merchandise  indebtedness." 

The  creditors  representing  ninety  per  cent,  of  this 
indebtedness  signed  the  agreement,  and  all  of  them  have 
accepted  the  twenty-five  cents  on  the  dollar  except  the 
appellants.  They  say  they  are  not  bound  by  the  agreement, 
because  the  appellee  (the  debtor)  made  an  assignment  of  his 
property  to  a  trustee  for  the  benefit  of  creditors,  after  this 
composition  agreement  was  entered  into.  This  the  appellee 
may  have  done  for  his  own  protection,  or  to  bring  about, 
if  the  composition  agreement  failed  for  want  of  the  proper 
number  of  signatures,  an  equal  distribution  of  his  property 


91 

or  its  proceeds  between  his  creditors.  The  proof  conduces 
to  show  that  one  creditor  had  at  least  attached  his  goods, 
and  to  prevent  such  preferences  he  made  the  assignment. 
There  is  no  evidence  of  any  fraud  practiced  by  the  appel- 
lee; but,  on  the  contrary,  he  proceeded,  after  the  assign- 
ment of  his  property,  to  obtain  the  requisite  number  of 
signatures  in  order  to  effect  the  settlement ;  and  this  having 
been  done  within  a  reasonable  time,  he  proceeded  to  pay  off 
his  creditors  under  the  composition  agreement.  He  paid  all 
but  the  two  appellants,  and  they  are  now  insisting  that  as 
his  estate  is  amply  sufficient  to  pay  them,  the  other  creditors 
being  satisfied,  there  is  no  reason  for  holding  them  to  the 
agreement.  It  is  argued  that  this  is  a  controversy  between 
the  creditor  and  debtor  only,  as  all  his  other  creditors  are 
satisfied,  and  the  debtor  is  able  to  pay  them.  The  inquiry 
at  once  arises,  what  placed  the  debtor  in  a  condition  by 
which  his  ability  to  pay  these  two  debts  is  unquestioned? 
The  response  is,  the  surrender  by  all  of  his  creditors  of  their 
claims  upon  the  payment  of  twenty-five  cents  on  the  dollar. 
The  creditors'  money  is  left  with,  or  given  to  the  debtor, 
by  reason  of  the  agreement  the  appellants  are  seeking  to 
avoid.  The  chancellor,  in  allowing  their  claims  in  full, 
would  be  aiding  the  appellants  to  take  an  improper  advan- 
tage of  those  with  whom  they  had,  in  good  faith,  contracted, 
by  using  their  means,  or  what,  as  between  the  appellant 
and  the  other  creditors,  belonged  in  law  and  equity  to  the 
latter,  to  pay  appellants'  debts.  They  knew  of  the  assign- 
ment by  the  appellee,  or  if  not,  they  knew  of  the  acceptance 
by  the  creditors,  or  many  of  them,  of  the  sum  agreed  on  in 
full  discharge  of  their  debts,  and  neither  a  court  of  law  or 
conscience  should  give  them  this  advantage. 

They  had  no  more  right  in  equity  to  this  money  than 
if  they  had  made  a  secret  arrangement  with  the  appellee  to 
pay  their  debts  in  full  at  the  time  they  signed  the  agree- 
ment. The  assignment  of  the  estate  of  appellee  for  creditors 
did  not  change  the  relation  of  the  parties.  It  placed  the 
creditor  in  no  worse  condition,  and  even  an  absolute  sale, 


92 

if  made  in  good  faith,  to  enable  the  debtor  to  comply  with 
the  agreement,  could  not  have  been  deemed  fraudulent.  It 
would  be  unjust  to  both  the  debtor  and  those  of  his  credi- 
tors who  had  released  their  claims,  to  permit  this  defence. 
The  obligation  to  comply  was  reciprocal,  and  no  creditor 
signing  the  paper  can  disregard  his  agreement  so  as  to  pre- 
vent the  equitable  adjustment,  and  the  chancellor  will  not 
hesitate  to  enforce  it.  The  debtor  may  refuse  to  comply  or 
decline  by  his  acts  to  recognize  the  agreement,  and  if  so, 
the  creditor  is  not  bound ;  we  find  no  such  refusal  in  this 
case. 

Judgment  affirmed. 


Consideration  need  not  be  adequate 

BAINBRIDGE  v.  FIRMSTONE, 

8  A.  &  E.  743  (1838). 

Assumpsit.  The  declaration  stated  that,  whereas,  here- 
tofore, to  wit,  etc.,  in  consideration  that  plaintiff,  at  the 
request  of  defendant,  had  then  consented  to  allow  defendant 
to  weigh  divers,  to  wit,  two  boilers,  of  the  plaintiff,  of 
great  value,  etc.,  defendant  promised  that  he  would,  within  a 
reasonable  time  after  the  said  weighing  was  effected,  leave 
and  give  up  the  boilers  in  as  perfect  and  complete  a  condi- 
tion and  as  fit  for  use  by  plaintiff  as  the  same  were  in  at 
the  time  of  the  consent  so  given  by  plaintiff;  and  that, 
although  in  pursuance  of  the  consent  so  given,  defendant, 
to  wit,  on,  etc.,  did  weigh  the  same  boilers,  yet  defendant 
did  not  nor  would,  within  a  reasonable  time  after  the  said 
weighing  was  effected,  leave  and  give  up  the  boilers  in  as 
perfect,  etc.,  but  wholly  neglected  and  refused  so  to  do, 
although  a  reasonable  time  for  that  purpose  had  elapsed 
before  the  commencement  of  this  suit ;  and,  on  the  contrary 
thereof,  defendant  afterward,  to  wit,  on,  etc.,  took  the  said 


93 

boilers  to  pieces,  and  did  not  put  the  same  together  again, 
but  left  the  same  in  a  detached  and  divided  condition,  and 
in  many  different  pieces,  whereby  plaintiff  hath  been  put  to 
great  trouble,  etc.     Plea,  non  assumpsit. 

Den  man,  C.  J. :  It  seems  to  me  that  the  declaration 
is  well  enough.  The  defendant  had  some  reason  for  wishing 
to  weigh  the  boilers,  and  he  could  do  so  only  by  obtaining 
permission  from  the  plaintiff,  which  he  did  obtain  by  prom- 
ising to  return  them  in  good  condition.  We  need  not  inquire 
what  benefit  he  expected  to  derive.  The  plaintiff  might  have 
given  or  refused  leave. 

Patterson,  J. :  The  consideration  is,  that  the  plaintiff, 
at  the  defendant's  request,  had  consented  to  allow  the  de- 
fendant to  weigh  the  boilers.  I  suppose  the  defendant 
thought  he  had  some  benefit;  at  any  rate,  there  is  a  detri- 
ment to  the  plaintiff  from  his  parting  with  the  possession 
for  even  so  short  a  time. 


Consideration  need  not  be  adequate 

SMOCK  ET  AL.  v.  PIERSON,  EXECUTOR. 
68  Ind.  405  (1879). 

Appeal  from  judgment  for  the  plaintiff  (Pierson). 

The  action  in  this  case  was  by  Charles  C.  Pierson, 
as  executor  of  Ebenezer  Smith,  deceased,  against  W.  C. 
Smock  and  D.  M.  Ransdell  upon  a  promissory  note  payable 
to  the  testator.  The  defense  was  that  note  was  given  with- 
out any  good  or  valuable  consideration. 

It  appeared  in  the  evidence  that  Smock  and  Ransdell 
(appellants)  and  the  deceased  had  been  engaged  in  a  part- 
nership business  for  the  purchase  and  sale  of  real  estate 
on  commission ;  that  in  October,  1873,  the  firm  was  dis- 
solved because  of  the  illness  of  deceased,  who  retired,  leav- 
ing Smock  and  Ransdell  to  continue  the  business.    The  note 


94 

in  question  was  given,  according  to  one  of  the  appellant's 
witnesses,  in  settlement  of  deceased's  interest  in  the  good 
will  of  the  business. 

The  appellants,  in  answer  to  interrogatories  addressed 
to  them,  stated,  in  substance,  that  the  deceased  was  not 
willing  to  take  his  share  of  the  profits  simply,  but  that, 
knowing  the  fatal  character  of  his  sickness  and  his  inability 
to  perform  further  labor,  and  to  humor  him  merely,  and 
fearing  that  a  refusal  on  their  part  would  make  him  physi- 
cally worse,  they  executed  the  note  sued  on. 

Several  other  witnesses,  familiar  with  the  real  estate 
business,  testified  that  the  financial  revulsion  of  September, 
1873,  practically  destroyed  all  trade  in  real  estate  in  Indian- 
apolis, and  that,  for  that  and  other  reasons  growing  out  of 
the  peculiar  nature  of  the  business,  the  good  will  claimed 
to  have  been  sold  by  the  deceased  to  the  appellants  was 
of  no  value  whatever.  There  was  evidence,  however,  tend- 
ing to  show  that,  at  the  time  of  the  execution  of  the  note 
in  suit,  there  was  a  very  general  impression  amongst  dealers 
in  real  estate  about  Indianapolis,  that  there  would  be,  within 
a  few  months  at  the  farthest,  a  favorable  reaction  in  their 
line  of  business. 

Niblack,  J. :  The  good  will  of  a  trade  or  business  was 
tersely  called  by  Lord  Eldon,  "the  probability  that  the  old 
customers  will  resort  to  the  old  place."  This  probability 
results  from  an  established  business  at  a  particular  place, 
indicating  to  the  public  where  and  in  what  manner  it  is 
carried  on.  It  is  well  settled  that  the  "good  will"  of  a  busi- 
ness, like  a  trade-mark,  is  a  species  of  property  subject  to 
sale  by  the  proprietor,  and  which  may  be  sold  by  order  of 
court.  1  Parsons  Contracts,  153;  The  Glen  and  Hall  Manu- 
facturing Co.  v.  Hall,  61  N.  Y.  226. 

In  estimating  the  value  of  a  thing  as  the  consideration 
for  a  promise,  there  is  a  manifest  distinction  between  prop- 
erty of  a  certain  and  determinate  value  and  things  which 
have  but  a  contingent  and  indeterminate  value.  But,  in 
any  event,  mere  inadequacy  of  consideration  is  not  suffi- 


95 

cient  to  defeat  a  promise.  It  is  sufficient  that  the  considera- 
tion shall  be  of  some  value.  It  may  only  be  of  slight  value, 
or  such  as  could  be  of  value  to  the  party  promising.  1  Chitty 
Contracts,  29. 

Where  a  party  gets  all  the  consideration  he  voluntarily 
and  knowingly  contracts  for,  he  will  not  be  allowed  to  say 
that  he  got  no  consideration.    Baker  v.  Roberts,  14  Ind.  552. 

In  the  case  at  bar  there  was  no  pretense  of  fraud  or 
concealment  on  the  part  of  Smith.  The  appellants  had  every 
opportunity  of  understanding  the  condition  of  their  firm's 
business,  and  in  that  respect  Smith  certainly  had  no  advan- 
tage of  them.  Up  to  the  time  when  Smith  retired,  the  firm 
had  been  successful  in  the  establishment  of  a  good  business, 
and  in  attracting  the  attention  of  persons  dealing  in  real 
estate.  It  was  quite  apparent  from  the  evidence  that  the 
appellants  desired  to  continue  in  the  business  thus  seem- 
ingly established  by  the  firm.  It  was  equally  apparent  that, 
for  reasons  satisfactory  to  themselves,  they  wished  to  get 
Smith  out  of  the  firm,  and  to  do  so  in  such  a  way  as  would 
work  no  disturbance  in  their  business,  and  would,  at  the 
same  time,  continue  to  them  the  "good  will"  which  the 
firm  had  enjoyed  up  to  that  time.  To  accomplish  these 
objects,  they  agreed  to  give  Smith  and  those  interested  with 
him  one  thousand  dollars,  in  addition  to  the  amount  which 
he  was  entitled  to  receive  as  his  share  of  the  profits  from 
their  joint  business.  The  promise  thus  made  was  a  binding 
promise  upon  the  appellants,  without  reference  to  whether 
the  arrangement  would  prove  to  be  a  profitable  one  to  them 
or  not,  for  better  or  for  worse,  they  got  what  they  bar- 
gained for,  and  they  now  have  no  lawful  reason  to  com- 
plain. 

If  their  expectations  as  to  future  business  were  not 
realized,  that  was  a  misfortune  for  which  Smith  was  not 
in  any  manner  legally  responsible.  That  circumstance  did 
not  even  tend  to  show  a  want  of  consideration  for  the  note 
in  controversy,  when  it  was  given. 


96 

We  are,  therefore,  of  the  opinion  that  the  appellants' 
defense  was  not  made  out  by  the  evidence,  and  that,  con- 
sequently, the  court  below  at  special  term  did  not  err  in 
its  refusal  to  grant  the  appellants  a  new  trial. 

The  judgment  at  general  term  is  affirmed. 


Consideration  must  be  real 

SCHNELL  v.  NELL, 

17  Ind.  29  (1861). 

Perkins,  J. :  Action  by  J.  B.  Nell  against  Zacharias 
Schnell,  upon  the  following  instrument : 

"This  agreement,  entered  into  this  13th  day  of  February,  1856, 
between  Zach.  Schnell,  of  Indianapolis,  Marion  County,  State  of 
Indiana,  as  party  of  the  first  part,  and  J.  B.  Nell,  of  the  same  place, 
Wendelin  Lorenz,  of  Stilesville,  Indiana,  and  Donata  Lorenz,  of 
Frickinger,  Germany,  as  parties  of  the  second  part,  witnesseth : 
The  said  Zacharias  Schnell  agrees  as  follows :  whereas  his  wife, 
Theresa  Schnell,  now  deceased,  has  made  a  last  will  and  testament, 
in  which,  among  other  provisions,  it  was  ordained  that  every  one 
of  the  above  named  second  parties  should  receive  the  sum  of  $200; 
and  whereas  the  said  provisions  of  the  will  must  remain  a  nullity, 
for  the  reason  that  no  property,  real  or  personal,  was  in  the  pos- 
session of  the  said  Theresa  Schnell,  deceased,  in  her  own  name,  at 
the  time  of  her  death,  and  all  property  held  by  Zacharias  and 
Theresa  Schnell  jointly,  therefore  reverts  to  her  husband;  and 
whereas  the  said  Theresa  Schnell  has  also  been  a  dutiful  and  loving 
wife  to  the  said  Zach.  Schnell,  and  has  materially  aided  him  in 
the  acquisition  of  all  property,  real  and  personal,  now  possessed  by 
him ;  for,  and  in  consideration  of  all  this,  and  the  love  and  re- 
spect he  bears  to  his  wife;  and,  furthermore,  in  consideration  of 
one  cent,  received  by  him  of  the  second  parties,  he,  the  said  Zach. 
Schnell,  agrees  to  pay  the  above  named  sums  of  money  to  the 
parties  of  the  second  part,  to  wit:  $200  to  the  said  J.  B.  Nell;  $200 
to  the  said  Wendelin  Lorenz ;  and  $200  to  the  said  Donata  Lorenz, 
in  the  following  installments,  viz.,  $200  in  one  year  from  the  date 
of  these  presents ;  $200  in  two  years,  and  $200  in  three  years ;  to 
be  divided  between  the  parties  in  equal  portions  of  $662-3  each 
year,  or  as  they  may  agree,  till  each  one  has  received  his  full  sum 
of  $200. 

"And  the  said  parties  of  the  second  part,  for,  and  in  considera- 
tion of  this,  agree  to  pay  the  above  named  sum  of  monev  (one 
cent)  and  to  deliver  up  to  said  Schnell,  and  abstain  from  collecting 
any  real  or  supposed  claims  upon  him  or  his  estate,  arising  from 


97 

the  said  last  will  and  testament  of  the  said  Theresa  Schnell,  de- 
ceased. 

"In  witness  whereof,  the  said  parties  have,  on  this  13th  day 
of  February,  1856,  set  hereunto  their  hands  and  seals. 

"ZACHARIAS  SCHNELL,        (Seal) 
"J.  B.  NELL,  (Seal) 

"WEN.  LORENZ."  (Seal) 

The  complaint  contained  no  averment  of  a  considera- 
tion for  the  instrument,  outside  of  those  expressed  in  it; 
and  did  not  aver  that  the  one  cent  agreed  to  be  paid  had 
been  paid  or  tendered. 

A  demurrer  to  the  complaint  was  overruled. 

The  defendant  then  answered  that  the  instrument  sued 
on  was  given  for  no  consideration  whatever. 

He  further  answered  that  it  was  given  for  no  considera- 
tion because  his  said  wife,  Theresa,  at  the  time  she  made 
the  will  mentioned,  and  at  the  time  of  her  death,  owned, 
neither  separately  nor  jointly  with  her  husband  or  any  one 
else  (except  so  far  as  the  law  gave  her  an  interest  in  her 
husband's  property),  any  property,  real  or  personal,  etc. 

The  will  is  copied  into  the  record,  but  need  not  be  into 
this  opinion. 

The  Court  sustained  a  demurrer  to  these  answers, 
evidently  on  the  ground  that  they  were  regarded  as  con- 
tradicting the  instrument  sued  on,  which  particularly  set 
out  the  considerations  upon  which  it  was  executed.  But 
the  instrument  is  latently  ambiguous  on  this  point. 

The  case  turned  below,  and  must  turn  here,  upon  the 
question  whether  the  instrument  sued  on  does  express  a 
consideration  sufficient  to  give  it  legal  obligation,  as  against 
Zacharias  Schnell.  It  specifies  three  distinct  considerations 
for  his  promise  to  pay  $600 : 

1.  A  promise  on  the  part  of  the  plaintiffs  to  pay  him 
one  cent. 

2.  The  love  and  affection  he  bore  his  deceased  wife, 
and  the  fact  that  she  had  done  her  part,  as  his  wife,  in  the 
acquisition  of  property. 


98 

3.  The  fact  that  she  had  expressed  her  desire,  in  the 
form  of  an  inoperative  will,  that  the  persons  named  therein 
should  have  the  sums  of  money  specified. 

The  consideration  of  one  cent  will  not  support  the 
promise  of  Schnell.  It  is  true,  that  as  a  general  proposition, 
inadequacy  of  consideration  will  not  vitiate  an  agreement. 
But  this  doctrine  does  not  apply  to  a  mere  exchange  of 
sums  of  money,  of  coin,  whose  value  is  exactly  fixed,  but 
to  the  exchange  of  something  of,  in  itself,  indeterminate 
value,  for  money,  or,  perhaps,  for  some  other  thing  of 
indeterminate  value.  In  this  case,  had  the  one  cent  men- 
tioned, been  some  particular  one  cent,  a  family  piece,  or 
ancient,  remarkable  coin,  possessing  an  indeterminate  value, 
extrinsic  from  its  simple  money  value,  a  different  view 
might  be  taken.  As  it  is,  the  mere  promise  to  pay  six  hun- 
dred dollars  for  one  cent,  even  had  the  portion  of  that 
cent  due  from  the  plaintiff  been  tendered,  is  an  uncon- 
scionable contract,  void,  at  first  blush,  upon  its  face,  if  it 
be  regarded  as  an  earnest  one.  The  consideration  of  one 
cent  is,  plainly,  in  this  case,  merely  nominal,  and  intended 
to  be  so.  As  the  will  and  testament  of  Schnell's  wife  im- 
posed no  legal  obligation  upon  him  to  discharge  her  bequests 
out  of  his  property,  and  as  she  had  none  of  her  own,  his 
promise  to  discharge  them  was  not  legally  binding  upon 
him,  on  that  ground.  A  moral  consideration,  only,  will  not 
support  a  promise.  And  for  the  same  reason,  a  valid  con- 
sideration for  his  promise  cannot  be  found  in  the  fact  of 
a  compromise  of  a  disputed  claim;  for  where  such  claim 
is  legally  groundless,  a  promise  upon  a  compromise  of  it, 
or  of  a  suit  upon  it,  is  not  legally  binding.  There  was  no 
mistake  of  law  or  fact  in  this  case,  as  the  agreement  admits 
the  will  inoperative  and  void.  The  promise  was  simply 
one  to  make  a  gift.  The  past  services  of  his  wife,  and  the 
love  and  affection  he  had  borne  her,  are  objectionable  as 
legal  consideration  for  Schnell's  promise,  on  two  grounds : 
1.  They  are  past  considerations.  2.  The  fact  that  Schnell 
loved  his  wife,  and  that  she  had  been  industrious,  consti- 


99 

tuted  no  consideration  for  his  promise  to  pay  J.  B.  Nell, 
and  the  Lorenzes,  a  sum  of  money.  Whether,  if  his  wife, 
in  her  lifetime,  had  made  a  bargain  with  Schnell,  that,  in 
consideration  of  his  promising  to  pay,  after  her  death,  to 
the  persons  named,  a  sum  of  money,  she  would  be  indus- 
trious, and  worthy  of  his  affection,  such  a  promise  would 
have  been  valid  and  consistent  with  public  policy,  we  need 
not  decide.  Nor  is  the  fact  that  Schnell  now  venerates  the 
memory  of  his  deceased  wife,  a  legal  consideration  for  a 
promise  to  pay  any  third  person  money. 

The  instrument  sued  on,  interpreted  in  the  light  of  the 
facts  alleged  in  the  second  paragraph  of  the  answer,  will 
not  support  an  action.  The  demurrer  to  the  answer  should 
have  been  overruled. 

Per  Curiam  :  The  judgment  is  reversed,  with  costs. 
Cause  remanded,  etc. 


Doing  what  one  is  legally  bound  to  do— Contract 
obligation 

STILK  v.  MYRICK, 
2  Camp.  317  (1809). 

This  was  an  action  for  seaman's  wages,  on  a  voyage 
from  London  to  the  Baltic  and  back. 

By  the  ship's  articles,  executed  before  the  commence- 
ment of  the  voyage,  the  plaintiff  was  to  be  paid  at  the  rate 
of  £5  a  month;  and  the  principal  question  in  the  cause  was, 
whether  he  was  entitled  to  a  higher  rate  of  wages.  In  the 
course  of  the  voyage  two  of  the  seamen  deserted,  and  the 
captain,  having  in  vain  attempted  to  supply  their  places  at 
Cronstadt,  there  entered  into  an  agreement  with  the  rest 
of  the  crew,  that  they  should  have  the  wages  of  the  two 
who  had  deserted  equally  divided  among  them  if  he  could 
not  procure  two  other  hands  at  Gottenburgh.  This  was 
found  impossible,  and  the  ship  was  worked  back  to  London 
by  the  plaintiff  and  eight  more  of  the  original  crew,  with 
whom  the  agreement  had  been  made  at  Cronstadt. 


100 

Lord  Ellenborough  :  I  think  Harris  v.  Watson  was 
rightly  decided ;  but  I  doubt  whether  the  ground  of  public 
policy,  upon  which  Lord  Kenyon  is  stated  to  have  proceeded, 
be  the  true  principle  on  which  the  decision  is  to  be  sup- 
ported. Here  I  say,  the  agreement  is  void  for  want  of 
consideration.  There  was  no  consideration  for  the  ulterior 
pay  promised  to  the  mariners  who  remained  with  the  ship. 
Before  they  sailed  from  London  they  had  undertaken  to  do 
all  they  could  under  all  the  emergencies  of  the  voyage. 
They  had  sold  all  their  services  till  the  voyage  should  be 
completed.  If  they  had  been  at  liberty  to  quit  the  vessel 
at  Cronstadt,  the  case  would  have  been  quite  different ;  or 
if  the  captain  had  capriciously  discharged  the  two  men 
who  were  wanting,  the  other  might  not  have  been  com- 
pelled to  take  the  whole  duty  upon  themselves,  and  their 
agreeing  to  do  so  might  have  been  a  sufficient  consideration 
for  the  promise  of  an  advance  of  wages.  But  the  desertion 
of  a  part  of  the  crew  is  to  be  considered  an  emergency  of 
the  voyage  as  much  as  their  death,  and  those  who  remain 
are  bound  by  the  terms  of  their  original  contract  to  exert 
themselves  to  the  utmost  to  bring  the  ship  safely  to  her 
destined  port.  Therefore,  without  looking  to  the  policy 
of  this  agreement,  I  think  it  is  void  for  want  of  consider- 
ation, and  that  the  plaintiff  can  only  recover  at  the  rate 
of  £5  a  month. 

Verdict  accordingly, 


Doing  what  one  is  legally  bound  to  do — Contract 
obligation 

LEWIS  F.  F.  ABBOTT  v.  VALENTINE  DOANE,  JR., 

163  Mass.  433  (1895). 

Action  on  contract  upon  a  promissory  note  for  $500, 
dated  December  27,  1892,  payable  in  three  months  after 
date  to  the  order  of  the  plaintiff,  and  signed  by  the  defend- 
ant.   The  answer  set  up  want  of  consideration.    At  the  trial 


101 

in  the  Superior  Court,  before  Bond,  J.,  the  jury  returned  a 
verdict  for  the  plaintiff,  to  which  the  defendant  took  excep- 
tions. 

Allen,  J. :  The  plaintiff  had  given  his  accommodation 
note  to  a  corporation,  which  had  had  it  discounted  at  a  bank, 
and  left  it  unpaid  at  its  maturity.  The  defendant,  being  a 
stockholder,  director  and  creditor  of  the  corporation,  wish- 
ing to  have  the  note  paid  at  once  for  his  own  advantage, 
entered  into  an  agreement  with  the  plaintiff  whereby  he 
was  to  give  to  the  plaintiff  his  own  note  for  the  amount, 
and  the  plaintiff  was  to  furnish  money  to  enable  the  de- 
fendant to  take  up  the  note  at  the  bank.  This  agreement 
was  carried  out,  and  the  defendant  now  contends  that  his 
note  to  the  plaintiff  was  without  consideration,  because  the 
plaintiff  was  already  bound  in  law  to  take  up  the  note  at 
the  bank. 

It  is  possible  that,  for  one  reason  or  another,  both  the 
bank  and  the  plaintiff  may  have  been  willing  to  wait  for  a 
while,  but  that  the  defendant's  interests  were  imperiled 
by  a  delay,  and  indeed  required  that  the  note  should  be  paid 
at  once,  and  that  the  corporation,  whose  duty  it  was  primar- 
ily to  pay  it,  was  without  present  means  to  do  so.  Since 
the  defendant  was  sane,  sui  juris,  was  not  imposed  upon 
nor  under  duress,  knew  what  he  was  about,  and  probably 
acted  for  his  own  advantage,  it  would  certainly  be  unfor- 
tunate if  the  rules  of  law  required  us  to  hold  his  note  in- 
valid for  want  of  a  sufficient  consideration,  when  he  has 
had  all  the  benefit  that  he  expected  to  get  from  it. 

In  this  Commonwealth  it  was  long  ago  decided  that, 
even  between  the  original  parties  to  a  building  contract, 
if  after  having  done  a  part  of  the  work,  the  builder  refused 
to  proceed,  but  afterward,  on  being  promised  more  pay  by 
the  owner,  went  on  and  finished  the  building,  he  might 
recover  the  whole  sum  so  promised. 

But  when  one  who  is  unwilling  or  hesitating  to  go  on 
and  perform  a  contract  which  proves  a  hard  one  for  him  is 
requested  to  do  so  by  a  third  person  who  is  interested  in 


102 

such  performance,  though  having  no  legal  way  of  com- 
pelling it,  or  of  recovering  damages  for  a  breach,  and  who 
accordingly  makes  an  independent  promise  to  pay  a  sum 
of  money  for  such  performance,  the  reasons  for  holding 
him  bound  to  such  payment  are  stronger  than  where  an 
additional  sum  is  promised  by  the  party  to  the  original 
contract. 

Take  an  illustration:  A.  enters  into  a  contract  with  B. 
to  do  something.  It  may  be  to  pay  money,  to  render  serv- 
ice, or  to  sell  land  or  goods  for  a  price.  The  contract  may 
be  not  especially  for  the  benefit  of  B.,  but  rather  for  the 
benefit  of  others ;  as,  e.  g.,  to  erect  a  monument,  an  arch- 
way, a  memorial  of  some  kind,  or  to  paint  a  picture  to  be 
placed  where  it  can  be  seen  by  the  public.  The  considera- 
tion moving  from  B.  may  be  executed  or  executory ;  it  may 
be  money,  or  anything  else  in  law  deemed  valuable;  it  may 
be  of  slight  value  as  compared  with  what  A.  has  contracted 
to  do.  Now  A.  is  legally  bound  only  to  B.,  and  if  he 
breaks  his  contract  nobody  but  B.  can  recover  damages, 
and  those  damages  may  be  slight.  They  may  even  be 
already  liquidated  at  a  small  sum  by  the  terms  of  the  con- 
tract itself.  Though  A.  is  legally  bound,  the  motive  to 
perform  the  contract  may  be  slight.  If  after  A.  has  refused 
to  go  on  with  his  undertaking,  or  while  he  is  hesitating 
whether  to  perform  it  or  submit  to  such  damages  as  B. 
may  be  entitled  to  recover,  other  persons  interested  in 
having  the  contract  performed  intervene,  and  enter  into 
a  new  agreement  with  A.,  by  which  A.  agrees  to  do  that 
which  he  was  already  bound  by  his  contract  with  B.  to  do, 
and  they  agree  jointly  or  severally  to  pay  him  a  certain 
sum  of  money,  and  give  their  note  or  notes  therefor,  and 
A.  accordingly  does  what  he  had  before  agreed  to  do,  but 
what  perhaps  he  might  not  otherwise  have  done,  no  good 
reason  is  perceived  why  they  should  not  be  held  to  fulfill 
their  promise.  They  have  got  what  they  bargained  for, 
and  A.  has  done  what  otherwise  he  might  not  have  done, 
and  what  they  could  not  have  compelled  him  to  do. 

Editor's  Note. — According  to  the  weight  of  authority  in  this  country 
a  promise  to  perform  an  existing  contract  with  a  third  person  or  per- 
formance of  it  does  not  constitute  a  valid  consideration.  The  contrary 
is  the  law  in  England,  and  it  has  been  maintained  recently  by  an 
American  writer  that  in  most  of  the  American  cases  the  English  cases 
were  not  brought  to  the  attention  of  the  Court,  and  that  the  latest 
decisions  show  a  marked  tendency  toward  the  English  rule.    9  Cyc.  353. 


103 

Without  dwelling  further  on  the  reasons  for  the  doc- 
trine, it  seems  to  us  better  to  hold,  as  a  general  rule,  that  if 
A.  has  refused  or  hesitated  to  perform  an  agreement  with 
B.,  and  is  requested  to  do  so  by  C,  who  will  derive  a  benefit 
from  such  performance,  and  who  promises  to  pay  him  a 
certain  sum  therefor,  and  'A.  thereupon  undertakes  to  do 
it,  the  performance  by  A.  of  his  agreement  in  consequence 
of  such  request  and  promise  by  C.  is  a  good  consideration 
to  support  C.'s  promise. 

Exceptions  overruled. 


Doing  what  one  is  legally  bound  to  do— Non-Contract 
obligation 

FINK  v.  SMITH,  APPELLANT, 
170  Penna.  124  (1895). 

Appeal  from  judgment  for  plaintiff. 

Action  of  replevin  to  recover  a  mare. 

Dean,  J. :  Smith,  the  defendant,  at  a  sheriff's  sale  of 
the  personal  property  of  one  Sarah  Hyde,  wife  of  George 
Hyde,  purchased  a  mare;  then,  as  a  mere  act  of  kindness 
towards  Mrs.  Hyde,  he  left  the  animal  temporarily  with  her; 
some  months  afterwards,  George  Hyde,  the  husband,  sold 
the  mare  to  Fink,  the  plaintiff,  who  took  her  into  his  pos- 
session ;  Smith,  the  owner,  hearing  of  this  went  to  Fink  and 
demanded  his  property,  but  he  refused  to  surrender  pos- 
session ;  then  Smith  informed  Gallatin,  the  sheriff",  who  had 
sold  her  to  him,  of  the  wrong  and  threatened  to  replevy 
her;  Gallatin  replied  that  was  not  necessary  as  he  would 
get  her  for  him ;  Gallatin  went  to  Fink,  and  obtained  a 
promise  from  him  to  restore  the  mare  to  Smith  without  a 
replevin ;  then  Smith  again  went  to  Fink  and  the  mare  was 
delivered  to  him  on  the  condition  that,  if  on  an  indictment 
for  larceny  of  the  mare  then  pending  against  George  Hyde 


104 

there  should  be  an  acquittal,  the  mare  should  be  returned, 
but  if  Hyde  were  convicted,  Smith  was  to  keep  her.  Hyde 
was  acquitted  of  larceny.  Thereupon,  Fink  replevied  the 
mare.  When  the  case  came  to  trial,  the  facts  turned  out 
as  we  have  stated  them  from  the  admissions  of  the  parties 
and  the  findings  of  the  jury.  The  verdict  was  for  Fink, 
plaintiff,  in  damages  to  the  value  of  the  mare.  Hence  this 
appeal  by  Smith,  defendant. 

The  controlling  assignment  of  error  and  which  in  sub- 
stance embraces  all  the  error  alleged  is  raised  by  the  follow- 
ing excerpt  from  the  charge  of  the  learned  judge  of  the 
court  below :  "The  only  question  remaining  in  this  case 
is  whether  the  mare  was,  under  this  agreement,  to  be  re- 
turned to  Fink,  if  Hyde  was  acquitted  of  the  charge  in  court 
of  the  larceny  of  the  mare.  If  so,  then  we  instruct  you  that 
there  was  sufficient  consideration  for  that  agreement  at  the 
time  of  the  lawsuit  in  order  to  recover  her,  and  at  the  time 
this  mare  was  involved  in  the  threatened  lawsuit ;  and  the 
only  way  that  he  could  get  her  without  a  lawsuit  was  by 
making  this  agreement  that  it  is  alleged  on  the  part  of  the 
plaintiff  was  made  between  Fink  and  Smith.  If  you  believe 
such  an  agreement  was  made  then  your  verdict  should  be 
for  the  plaintiff  for  the  value  of  the  mare  with  interest 
from  that  time." 

Was  this  correct  instruction,  as  to  the  law  applicable 
to  the  evidence  ?  There  was  no  dispute  as  to  the  ownership 
of  the  property;  the  mare,  it  was  conceded,  belonged  to 
Smith ;  and  although  he  testified  no  such  conditional  bargain 
was  made,  it  was  just  as  positively  testified  to,  on  the  other 
side,  that  it  was  made,  and  the  jury  have  found  the  fact 
against  him.  So,  we  have  the  unquestioned  owner  of  the 
mare,  bargaining  with  one  in  wrongful  possession,  for  her 
surrender ;  the  possession  thereafter  to  be  determined  by  the 
verdict  in  a  criminal  prosecution,  then  pending.  Was  his 
possession,  thus  obtained,  wrongful  as  against  Fink,  when 
the  event  of  the  prosecution  was  the  acquittal  of  Hyde? 
That  depends  on  the  valadity  of  the  contract  between  them. 


105 

1.  The  contract  was  void,  because  based  on  a  fact 
which  did  not  exist,  though  both  parties  assumed  it  to  be  a 
fact.  Fink  purchased  from  George  Hyde ;  both  assumed 
that  Hyde's  title  would  necessarily  be  determined  by  his 
acquittal  or  conviction  of  larceny ;  but  the  event  of  the 
prosecution  in  no  wise  determined  that ;  it  determined  only 
that  the  evidence  did  not  show,  beyond  a  reasonable  doubt, 
a  felonious  intent;  what  the  weight  of  it  showed,  we  do 
not  know;  but  the  admitted  facts  here,  that  the  mare  is 
Smith's,  and  that  Hyde  sold  her,  also  show  conclusively  that 
Hyde  was  guilty  of  either  larceny  or  trespass.  So  their 
assumption,  that  the  criminal  prosecution  would  determine 
Hyde's  title,  and  necessarily  theirs,  was  a  mutual  mistake 
of  fact.  "Where  certain  facts  assumed  by  both  parties  are 
the  basis  of  a  contract,  and  it  subsequently  appears  such 
facts  do  not  exist,  the  contract  is  inoperative :"  Horbach  v. 
Gray,  8  W.  497. 

2.  There  was  no  consideration  to  support  Smith's 
promise.  A  promise  made  by  the  owner  to  obtain  possession 
of  his  goods,  which  at  the  time  are  wrongfully  withheld 
from  him,  is  without  consideration :  Chitty  on  Contracts,  p. 
51;  Addison  on  Contracts,  13.  This  principle  is  conceded 
by  the  learned  judge  of  the  court  below,  and  the  undoubted 
wrongful  possession  by  Fink  of  Smith's  property  is  also 
conceded.  But  he  assumes,  there  is  no  evidence  that  Fink 
knew  this  at  the  time  he  delivered  it  to  Smith,  and  therefore 
the  contract  should  be  treated  as  a  compromise  of  doubtful 
litigation,  which  is  a  good  consideration  to  support  a  con- 
tract. But  the  error  in  this  view  is,  that  Fink's  wrongful 
possession  did  not  depend  on  what  he  knew,  but  on  the  fact. 
Was  it  Smith's  property?  Had  he  demanded  it  from  him 
who  wrongfully  detained  it?  If  these  were  the  facts,  and 
they  are  not  denied,  then,  there  was  no  consideration  for 
Smith's  promise,  for  no  benefit  passed  to  Smith,  and  Fink 
sustained  no  loss  by  the  contract ;  to  hold  that  the  abandon- 
ment of  a  wholly  wrongful  detention  of  another's  property 
can  form  the  basis  of  a  compromise  contract  with  the  owner 


106 

is  direct  encouragement  to  the  commission  of  wrong  for 
profit,  and  for  this  very  reason  the  law  holds  the  contract 
to  be  without  consideration.  If  Fink  had  been  indicted  for 
the  larceny  of  the  mare,  his  knowledge  of  the  ownership 
would  have  been  material  in  determining  his  guilt,  but  it 
is  of  no  moment  in  determining  the  fact  of  ownership. 

3.  While  we  think  it  is  of  doubtful  public  policy  to 
enforce  a  contract,  where  the  right  to  property  is  made  to 
turn  on  a  verdict  in  a  criminal  prosecution,  in  which  both 
parties  to  the  contract  are  witnesses,  we  do  not  decide  th* 
case  on  that  point. 

We  are  of  opinion,  however,  the  contract  was  based  on 
a  mutual  mistake  of  a  fact,  which  had  no  existence,  and 
further,  was  without  consideration.  Therefore  the  judg- 
ment is  reversed. 


Doing  what  one  is  legally  bound  to  do— Non-Contract 
obligation 

SMITH  v.  WHILDIN, 

10  Pa.  39  (1848). 

Action  of  assumpsit.  The  plaintiff,  who  was  a  con- 
stable in  Philadelphia,  proved  that  the  defendant  had  offered 
him  a  reward  of  $100  for  the  arrest  of  one  M.  Crossin, 
against  whom  warrants  had  been  issued  on  a  charge  for 
obtaining  goods  under  false  pretenses.  Under  one  of  these 
warrants  M.  Crossin  was  arrested,  in  Philadelphia,  by  plain- 
tiff's deputy. 

Campbell,  J.,  told  the  jury  the  only  question  was, 
whether  the  defendant  made  the  promise. 

Coulter,  J.,  (after  stating  the  case)  :  There  was  no 
consideration  for  the  promise,  and  the  court  below  there- 
fore misconceived  the  law.  It  is  the  duty  of  a  constable 
to  pursue,  search  for,  and  arrest  offenders  against  whom 


107 

criminal  process  is  put  into  his  hands.  It  is  stated  in  Com. 
Digest,  (title  Justice  of  the  Peace,  B.  79),  that  the  duty  of 
a  constable  requires  him  to  do  his  utmost  to  discover,  pursue, 
and  arrest  felons.  The  office  of  constable  is  created  not 
for  the  private  emolument  of  the  holder ;  but  to  conserve  the 
public  peace,  and  to  execute  the  criminal  law  of  the  country. 
He  is  not  the  agent  or  employe  of  the  private  prosecutor, 
but  the  minister  of  the  law,  doing  the  work  of  the  public, 
which  he  is  bound  to  do  faithfully  for  the  fee  prescribed 
by  law,  to  be  paid  as  the  law  directs.  And  it  would  be 
against  public  policy  as  well  as  against  law  to  hold  other- 
wise. 

There  are  things  which  a  constable  is  not  officially 
bound  to  do,  such  as  to  procure  evidence,  and  the  like,  and 
for  this  he  may  perhaps  be  allowed  to  contract.  And  this 
is  the  full  extent  of  the  principle  in  the  case  cited  from 
1 1  Ad.  and  El.  856.  But  it  has  been  held  that  even  a  sailor 
cannot  recover  for  extra  work  on  a  promise  by  the  master 
to  pay  for  extra  work  in  managing  the  ship  in  peril,  the 
sailor  being  bound  to  do  his  utmost  independently  of  any 
fresh  contract.  Stilk  v.  Myrick,  2  Camp.  317,  and  the  cases 
there  cited. 

It  would  open  a  door  to  profligacy,  chicanery,  and 
corruption,  if  the  officers  appointed  to  carry  out  the  criminal 
law  were  permitted  to  stipulate  by  private  contract;  it 
would  open  a  door  to  the  escape  of  offenders  by  culpable 
supineness  and  indifference  on  the  part  of  those  officers, 
and  compel  the  injured  persons  to  take  upon  themselves  the 
burden  of  public  prosecution.  It  ought  not  to  be  permitted. 
Constables  must  do  their  utmost  to  discover,  pursue,  and 
arrest  offenders  within  their  township,  district,  or  juris- 
diction, without  other  fee  or  reward  than  that  given  by  the 
law  itself. 

Judgment  reversed,  and  a  new  trial  awarded. 


108 

Accord  and  satisfaction 

JAFFRAY  ET  AL.,  RESPONDENTS,  v.  DAVIS  ET 
AL.,  APPELLANTS, 

124  N.  Y.  164  (1891). 

This  was  an  action  to  recover  a  balance  claimed  to  be 
due  upon  an  indebtedness. 

Potter,  J. :  The  facts  found  by  the  trial  court  in  this 
case  were  agreed  upon.  They  are  simple  and  present  a 
familiar  question  of  law.  The  facts  are  that  defendants 
were  owing  plaintiffs  on  December  8,  1886,  for  goods 
sold  between  that  date  and  the  May  previous  at  an  agreed 
price,  the  sum  of  $7714.37,  and  that  on  the  27th  of  the  same 
December  the  defendants  delivered  to  the  plaintiffs  their 
three  promissory  notes,  amounting  in  the  aggregate  to 
$3462.24,  secured  by  a  chattel  mortgage  on  the  stock,  fix- 
tures, and  other  property  of  defendants,  located  in  East 
Saginaw,  Mich.,  which  said  notes  and  chattel  mortgage 
were  received  by  plaintiffs  under  an  agreement  to  accept 
same  in  full  satisfaction  and  discharge  of  said  indebtedness. 
"That  said  notes  have  all  been  paid  and  said  mortgage  dis- 
charged of  record." 

The  question  of  law  arising  from  these  facts  and 
presented  to  this  court  for  its  determination  is  whether 
such  agreement,  with  full  performance,  constitutes  a  bar 
to  this  action,  which  was  brought  after  such  performance 
to  recover  the  balance  of  such  indebtedness  over  the  sum 
so  secured  and  paid. 

One  of  the  elements  embraced  in  the  question  presented 
upon  this  appeal  is,  viz.,  whether  the  payment  of  a  sum 
less  than  the  amount  of  a  liquidated  debt  under  an  agree- 
ment to  accept  the  same  in  satisfaction  of  such  debt  forms  a 
bar  to  the  recovery  of  the  balance  of  the  debt.  This  single 
question  was  presented  to  the  English  court  in  1602,  when 
if  was  resolved  (if  not  decided)  in  Pinnel's  Case  (5th  Co. 
R.  117),  "that  payment  of  a  lesser  sum  on  the  day  in  satis- 
faction of  a  greater,   cannot  be  any  satisfaction   for  the 


109 

whole,"  and  that  this  is  so,  although  it  was  agreed  that  such 
payment  should  satisfy  the  whole.  This  simple  question 
has  since  arisen  in  the  English  courts  and  in  the  courts  of 
this  country  in  almost  numerous  instances,  and  has  received 
the  same  solution,  notwithstanding  the  courts,  while  so  rul- 
ing, have  rarely  failed,  upon  any  recurrence  of  the  question, 
to  criticise  and  condemn  its  reasonableness,  justice,  fair- 
ness or  honesty.  No  respectable  authority  that  I  have  been 
able  to  find  has,  after  such  unanimous  disapproval  by  all 
the  courts,  held  otherwise  than  was  held  in  Pinnel's  Case 
(supra). 

The  steadfast  adhesion  to  this  doctrine  by  the  courts 
in  spite  of  the  current  or  condemnation  by  the  individual 
judges  of  the  Court,  and  in  the  face  of  the  demands  and 
conveniences  of  a  much  greater  business  and  more  exten- 
sive mercantile  dealings  and  operations,  demonstrate  the 
force  of  the  doctrine  of  stare  decisis.  But  the  doctrine  of 
stare  decisis  is  further  illustrated  by  the  course  of  judicial 
decisions  upon  this  subject,  for  while  the  courts  still  hold 
to  the  doctrine  of  the  Pinnel  and  Cumber  and  Wane  case 
(supra),  they  have  seemed  to  seize  with  avidity  upon  any 
consideration  to  support  the  agreement  to  accept  the  lesser 
sum  in  satisfaction  of  the  larger,  or,  in  other  words,  to 
extract,  if  possible,  from  the  circumstances  of  each  case 
a  consideration  for  the  new  agreement,  and  to  substitute 
the  new  agreement  in  place  of  the  old,  and  thus  form  a 
defense  to  the  action  brought  upon  the  old  agreement.  It 
will  serve  the  purpose  of  illustrating  the  adhesion  of  the 
Court  to  settled  law,  and  at  the  same  time  enable  us  per- 
haps more  satisfactorily  to  decide  whether  there  was  a 
good  consideration  in  a  few  of  the  numerous  cases  which 
the  courts  have  held  to  be  sufficient  to  support  the  new 
agreement.     *     *     * 

It  was  held  in  La  Page  v.  McCrea  (1  Wend.  164), 
and  in  Boyd  v.  Hitchcock  (20  Johns.  76),  that  "giving 
further  security  for  part  of  a  debt  or  other  security,  though 
for  a  less  sum  tban  the  debt  and  acceptance  of  it  in  full 
of  all  demands,  make  a  valid  accord  and  satisfaction." 


110 

That  "if  a  debtor  gives  his  creditor  a  note  endorsed 
by  a  third  party  for  a  less  sum  than  the  debt  (no  matter 
how  much  less),  but  in  full  satisfaction  of  the  debt,  and  it 
is  received  as  such,  the  transaction  constitutes  a  good  accord 
and  satisfaction."  (Varney  v.  Commey,  3  East.  25).  And 
so  it  has  been  held  "where  by  mode  or  time  of  part  payment, 
different  than  that  provided  for  in  the  contract,  a  new 
benefit  is  or  many  be  conferred  or  a  burden  imposed,  a  new 
consideration  arises  out  of  the  transaction  and  gives  valid- 
ity to  the  agreement  of  the  creditors,"  and  so  if  "payment 
of  less  than  the  whole  debt,  if  made  before  it  is  due  or  at  a 
different  place  from  that  stipulated,  if  received  in  full,  is 
a  good  satisfaction." 

In  Watson  v.  Elliott  (57  N.  H.  511-513),  it  was  held, 
"it  is  enough  that  something  substantial,  which  one  party 
is  not  bound  by  law  to  do,  is  done  by  him  or  something 
which  he  has  a  right  to  do  he  abstains  from  doing  at  the 
request  of  the  other  party,  is  held  a  good  satisfaction." 

It  was  held  by  the  Supreme  Court  of  Pennsylvania  in 
Mechanics'  Bank  v.  Houston  (February  13,  1882,  11  W. 
Note,  case  389),  "The  decided  advantage  which  a  creditor 
acquires  by  the  receipt  of  a  negotiable  note  for  a  part  of 
his  debt,  is  by  the  increased  facilities  of  recovering  upon  it, 
the  presumption  of  a  consideration  for  it,  the  ease  of  dis- 
posing of  it  in  market,"  etc.,  was  held  to  furnish  ample 
reason  why  it  should  be  a  valid  discharge  of  a  larger  account 
or  open  claim  unnegotiable. 

It  has  been  held  that  a  payment  in  advance  of  the  time 
if  agreed  to  is  full  satisfaction  for  a  larger  claim  not  yet 
due.     (Brooks  v.  White,  2  Met.  283). 

In  some  states,  notably  Maine  and  Georgia,  the  legis- 
lature, in  order  to  avoid  the  harshness  of  the  rule  under 
consideration,  have  by  statute  changed  the  law  upon  that 
subject  by  providing,  "no  action  can  be  maintained  upon 
a  demand  which  has  been  canceled  by  the  receipt  of  any 
sum  of  money  less  than  the  amount  legally  due  thereon, 
or  for  any  good  and  valuable  consideration,  however  small." 


Ill 

And  so  in  Gray  v.  Barton  (55  N.  Y.  68),  where  a 
debt  of  $820  upon  book  account  was  satisfied  by  the  pay- 
ment of  $1  by  calling  the  balance  a  gift,  though  the  balance 
was  not  delivered  except  by  fiction,  and  the  receipt  was  in 
the  usual  form  and  was  silent  upon  the  subject  of  a  gift, 
and  this  case  was  followed  and  referred  to  in  Ferry  v. 
Stephens  (66  N.  Y.  321). 

So  it  was  held  in  Mitchell  v.  Wheaton  (46  Conn.  315), 
that  the  debtor's  agreement  to  pay  and  the  payment  of  $150 
with  the  costs  of  the  suit  upon  a  liquidated  debt  of  $299 
satisfied  the  principal  debt.     *     *     * 

The  general  doctrine  in  Cumber  v.  Wane,  and  the 
reason  of  all  the  exceptions  and  distinctions  which  have 
been  engraved  on  it,  may  perhaps  be  summed  upon  as  fol- 
lows, viz. :  "That  a  creditor  cannot  bind  himself  by  a  simple 
agreement  to  accept  a  smaller  sum  in  view  of  an  ascertained 
debt  of  larger  amount,  such  an  agreement  being  nudum 
pactum.  But  if  there  be  any  benefit  or  even  any  legal  pos- 
sibility of  benefit  to  the  creditor  thrown  in,  that  additional 
weight  will  turn  the  scale  and  render  the  consideration  suffi- 
cient to  support  the  agreement." 

In  the  case  at  bar  the  defendants  gave  their  promissory 
notes  upon  time  for  one-half  of  the  debt  they  owed  plain- 
tiff, and  also  gave  plaintiff  a  chattel  mortgage  on  the  stock, 
fixtures,  and  other  personal  property  of  the  defendants 
under  an  agreement  with  plaintiff,  to  accept  the  same  in 
full  satisfaction  and  discharge  of  said  indebtedness.  De- 
fendants paid  the  notes  as  they  became  due,  and  plaintiff 
then  discharged  the  mortgage.  Under  the  cases  above  cited, 
and  upon  principle,  this  new  agreement  was  supported  by 
a  sufficient  consideration  to  make  it  a  valid  agreement,  and 
this  agreement  was  by  the  parties  substituted  in  place  of 
the  former.  The  consideration  of  the  new  agreement  was 
that  the  plaintiff,  in  place  of  an  open  book  account  for 
goods  sold,  got  the  defendants'  promissory  notes,  probably 
negotiable  in  form,  signed  by  defendants,  thus  saving  the 
plaintiff  perhaps  trouble  or  expense  of  proving  their  account 
and  got  security  upon  all  the  defendants'  personal  property 


112 

for  the  payment  of  the  sum  specified  in  the  notes,  where 
before  they  had  no  security. 

It  was  some  trouble  at  least,  and  perhaps  some  expense 
to  the  defendants  to  execute  and  deliver  the  security,  and 
they  deprived  themselves  of  the  legal  ownership,  or  of  any 
exemptions  or  the  power  of  disposing  of  this  property,  and 
gave  the  plaintiff  such  ownership  as  against  the  defendants, 
and  the  claims  thereto  of  defendants'  creditors,  if  there 
were  any,     *     *     * 


Consideration  must  be  mutual 
FRANK  E.  VOGEL  v.  JOHN  PEKOC, 
157  111.  339  (1895). 

Appeal  from  judgment  for  plaintiff. 

Craig,  C.  J. :  This  was  an  action  originally  brought 
before  a  justice  of  the  peace  by  John  Pekoe,  against  Nelson 
Morris,  Frank  E.  Yogel  and  Edward  Morris,  a  firm  doing 
business  as  Nelson  Morris  &  Company,  to  recover  the  sum 
of  $25  for  wages  claimed  to  be  due  as  a  cooper.  On  a  trial 
before  the  justice  the  plaintiff  recovered  the  amount  claimed, 
and  the  defendants  appealed  to  the  Superior  Court  of  Cook 
County,  where  a  jury  was  waived  and  a  trial  had  before  the 
court,  resulting  in  a  judgment  for  the  amount  sued  for,  and 
also  attorney's  fees.  To  reverse  this  latter  judgment  the  de- 
fendants have  appealed  to  this  court. 

The  defendants  requested  the  court  to  hold  the  follow- 
ing propositions  of  law,  but  the  court  refused  so  to  hold,  and 
this  ruling  is  relied  upon  as  error : 

1.  "That  the  evidence  in  the  case  is  not  sufficient,  in 
law,  to  sustain  a  finding  for  the  plaintiff. 

2.  "That  the  act  providing  for  attorney's  fees  in  suits 
for  wages,  approved  June  1  and  in  force  July  1,  1889,  is 
unconstitutional  and  void. 

3.  "That  the  evidence  in  the  case  does  not  show  a  suit 
for  wages,  within  the  meaning  of  said  act,  and  that  no  attor- 
neys' fees  can  be  allowed  thereunder." 


113 

The  evidence  shows  that  plaintiff  worked  as  a  cooper 
for  Nelson  Morris  &  Co.,  and  that  there  was  a  balance  in 
their  hands,  for  wages  unpaid,  of  $25.  The  defendants, 
however,  claim  that  the  amount  said  to  be  due  was  forfeited, 
for  the  reason  that  plaintiff  quit  the  services  of  defendants 
without  giving  two  weeks'  notice,  as  they  claim  he  was  re- 
quired to  do  under  a  contract  in  writing  which  they  put  in 
evidence,  as  follows : 

"This  agreement,  made  and  signed  this  12th  day  of 
September,  1892,  between  Fairbank  Canning  Company  and 
Nelson  Morris  &  Co.,  the  parties  of  the  first  part,  and  John 
Pekoe,  the  party  of  the  second  part : 

"Witnesseth,  the  said  parties  of  the  first  part  agree  to 
employ  the  said  party  of  the  second  part  to  perform  such 
work  as  they  may  assign  to  him  from  time  to  time,  such 
service  to  continue  only  so  long  as  satisfactory  to  the  said 
parties  of  the  first  part.  And  in  consideration  of  such 
employment,  and  the  peculiar  nature  of  the  business  of  the 
said  first  parties,  and  of  the  wages  to  be  paid  by  the  parties 
of  the  first  part,  the  said  second  party  agrees  that  he  will 
not  quit  said  service  and  employment  without  giving  two 
weeks'  notice,  in  writing,  to  said  first  parties  of  his  inten- 
tion so  to  do,  and  as  a  guaranty  for  the  faithful  performance 
of  this  agreement  on  his  part,  the  said  party  of  the  second 
part  agrees  to  deposit  with  said  first  parties  the  sum  of 
$25,  and  in  case  of  the  violation  of  this  agreement  by  said 
second  party  the  said  first  parties  shall  retain  said  amount  as 
liquidated  damages,  and  in  satisfaction  and  payment  of  all 
damages  by  them  sustained.  It  is  further  agreed  that  the 
said  first  parties  shall  retain  $2.50  per  week  of  the  wages 
earned  by  said  second  party  until  said  sum  of  $25  shall  be 
in  their  hands,  to  be  held  by  them  according  to  the  terms  of 
this  agreement. 

"John  Pekoc.     (Seal) 

(Seal) 

(Seal)" 


114 

On  the  other  hand,  the  plaintiff  insists  that  the  contract 
is  void  for  the  want  of  mutuality. 

It  will  be  observed  that  the  written  contract  was  not 
signed  by  the  parties  named  therein  as  parties  of  the  first 
part,  and  it  is  insisted  by  the  plaintiff,  that  as  they  failed 
to  sign  the  contract  it  never  became  binding  on  him  or  any 
other  person.  The  acceptance  of  the  contract  by  the  parties 
of  the  first  part,  and  holding  it  and  acting  upon  it  as  a  valid 
instrument,  may  be  regarded  as  equivalent  to  its  formal 
execution  on  their  part,  as  held  in  Johnson  v.  Dodge,  17 
111.  433.  Regarding  the  contract  in  the  same  way,  It  would 
be  treated  as  if  it  had  been  signed  by  the  persons  named  as 
parties  of  the  first  part. 

The  next  question  to  be  determined  is  whether  the  con- 
tract is  mutual.  It  is  a  general  rule,  well  understood,  that 
a  contract  between  parties  must  be  mutual.  (Weaver  v. 
Weaver,  109  111.  225);  (Tucker  v.  Woods,  12  Johns  190). 
In  the  case  last  cited  it  is  said:  "In  contracts,  where  the 
promise  of  the  one  party  is  the  consideration  for  the  promise 
of  the  other,  promises  must  be  concurrent,  and  obligatory 
upon  both  at  the  same  time."  In  Chitty  on  Contracts,  the 
author  says :  "The  agreement,  as  before  observed,  must,  in 
general,  be  obligatory  upon  both  parties.  There  are  several 
cases  satisfactorily  establishing,  that  if  the  one  party  never 
were  bound,  on  his  part,  to  do  the  act  which  forms  the  con- 
sideration for  the  promise  of  the  other,  the  agreement  is 
void,  for  want  of  mutuality."  In  1  Wharton  on  Contracts, 
page  5,  the  author  says :  "The  parties  to  a  contract  therefore, 
must  both  be  bound.  Supposing  that  one  promise  in  con- 
sideration of  the  promise  of  the  other,  the  one  is  not  bound 
unless  the  other  is  bound.  A  promise  to  do  a  thing  on  an 
executed  consideration  is  not  a  contract;  nor  is  a  promise 
to  do  a  thing  in  consideration  of  an  illegal  or  impossible 
engagement  on  the  other  side.  Without  this  reciprocal 
obligation  no  contract  can  be  constituted.  'It  is  a  general 
principle,'  says  Mr.  Fry,  'that  when,  from  personal  incapac- 
ity, the  nature  of  the  contract,  or  any  other  cause,  a  contract 


115 

is  incapable  of  being  enforced  against  one  party,  that  party 
is  equally  incapable  of  enforcing  it  specifically  against  the 
other  party,  though  its  execution  in  the  latter  way  might 
in  itself  be  free  from  difficulty  attending  its  execution  in  the 
former.'  " 

Upon  looking  into  the  contract  read  in  evidence,  it 
will  be  found  that  the  parties  of  the  first  part  practically 
agree  to  do  nothing,  and  there  is  substantially  no  obligation 
imposed  upon  them  by  the  contract.  The  only  portion  of 
the  contract  claimed  to  impose  any  obligation  on  the  parties 
of  the  first  part  is  the  following:  "The  said  parties  of 
the  first  part  agree  to  employ  the  said  party  of  the  second 
part  to  perform  such  work  as  they  may  assign  to  him  from 
time  to  time,  such  service  to  continue  only  so  long  as  sat- 
isfactory to  the  said  parties  of  the  first  part."  What  obli- 
gation does  this  impose?  When  are  they  to  employ  the 
party  of  the  second  part?  What  sum  are  they  to  pay? 
How  long  is  the  employment  to  continue?  Suppose  they 
refuse  to  employ  the  party  of  the  second  part ;  can  an  action 
for  damages  be  maintained  for  a  breach  of  the  contract? 
The  answer  to  these  inquiries  is  obvious.  We  think  it  is 
plain  that  the  parties  of  the  first  part  were  not  bound,  under 
the  terms  of  the  contract,  to  employ  the  party  of  the  second 
part  for  a  single  day  or  hour,  and  if  they  had  absolutely 
refused  to  employ  him  he  was  without  remedy  in  any 
court  of  the  country.  It  may  be  true  that  the  plaintiff 
might  have  entered  into  a  contract  which  would  require 
him  to  give  two  weeks'  notice  before  he  could  quit  the 
services  of  his  employer  without  being  liable  to  respond  in 
damages,  as  might  reasonably  be  provided  in  the  contract; 
but  no  such  case  is  presented  by  this  record.  Here  the 
contract  imposes  no  obligation  on  one  of  the  parties,  and 
hence  it  is  void  for  the  want  of  mutuality.     *     *     * 

The  contract  being  void,  it  will  not  be  necessary  to 
inquire  whether  the  amount  which  it  was  provided  might 
be  retained  was  a  penalty  or  liquidated  damages.     *     *     * 

Magruder,  J.,  dissented  on  other  points  in  the  case. 

Judgment  affirmed. 


116 

Past  consideration  and  moral  obligation 

DANIEL  MILLS  v.  SETH  WYMAN, 

3  Pick.  (Mass.)  207  (1826). 

Appeal  from  judgment  of  non-suit. 

This  was  an  action  of  assumpsit  brought  to  recover  a 
compensation  for  the  board,  nursing,  etc.,  of  Levi  Wyman, 
son  of  the  defendant  from  February  5th  to  the  20th,  1821. 
The  plaintiff  then  lived  at  Hartford,  in  Connecticut;  the 
defendant,  at  Shrewsbury,  in  this  county.  Levi  Wyman, 
at  the  time  when  the  services  were  rendered,  was  about 
twenty-five  years  of  age,  and  had  long  ceased  to  be  a  mem- 
ber of  his  father's  family.  He  was  on  his  return  from  a 
voyage  at  sea,  and,  being  suddenly  taken  sick  at  Hartford, 
and  being  poor  and  in  distress,  was  relieved  by  the  plain- 
tiff in  the  manner  and  to  the  extent  above  stated.  On  Feb- 
ruary 24th,  after  all  the  expenses  had  been  incurred,  the 
defendant  wrote  a  letter  to  the  plaintiff,  promising  to  pay 
him  such  expenses.  There  was  no  consideration  for  this 
promise,  except  what  grew  out  of  the  relation  which  sub- 
sisted between  Levi  Wyman  and  the  defendant,  and  Howe, 
J,  before  whom  the  cause  was  tried  in  the  Court  of  Com- 
mon Pleas,  thinking  this  not  sufficient  to  support  the  ac- 
tion, directed  a  non-suit.  To  this  direction  the  plaintiff  filed 
exceptions. 

Parker,  C.  J. :  General  rules  of  law  established  for  the 
protection  and  security  of  honest  and  fair-minded  men,  who 
may  inconsiderately  make  promises  without  any  equivalent, 
will  sometimes  screen  men  of  a  different  character  from 
engagements  which  they  are  bound  in  foro  conscientiae  to 
perform.  This  is  a  defect,  inherent  in  all  human  systems  of 
legislation.  The  rule  that  a  mere  verbal  promise,  without 
any  consideration,  cannot  be  enforced  by  action,  is  uni- 
versal in  its  application,  and  cannot  be  departed  from  to 
suit  particular  cases  in  which  a  refusal  to  perform  such  a 
promise  may  be  disgraceful. 


117 

The  promise  declared  on  in  this  case  appears  to  have 
been  made  without  any  legal  consideration.  The  kindness 
and  services  toward  the  sick  son  of  the  defendant  were 
not  bestowed  at  his  request.  The  son  was  in  no  respect 
under  the  care  of  the  defendant.  He  was  twenty-five  years 
old,  and  had  long  left  his  father's  family.  On  his  return 
from  a  foreign  country,  he  fell  sick  among  strangers,  and 
the  plaintiff  acted  the  part  of  the  good  Samaritan,  giving 
him  shelter  and  comfort  until  he  died.  The  defendant,  his 
father,  on  being  informed  of  this  event,  influenced  by  a 
transient  feeling  of  gratitude,  promises  in  writing  to  pay 
the  plaintiff  for  the  expenses  he  had  incurred.  But  he  has 
determined  to  break  this  promise,  and  is  willing  to  have  his 
case  appear  on  record  as  a  strong  example  of  particular 
injustice  sometimes  necessarily  resulting  from  the  operation 
of  general  rules. 

It  is  said  a  moral  obligation  is  a  sufficient  consideration 
to  support  an  express  promise;  and  some  authorities  lay 
down  the  rule  thus  broadly;  but  upon  examination  of  the 
cases  we  are  satisfied  that  the  universality  of  the  rule  can- 
not be  supported,  and  that  there  must  have  been  some  pre- 
existing obligation,  which  has  become  inoperative  by  posi- 
tive law,  to  form  a  basis  for  an  effective  promise.  The 
cases  of  debts  barred  by  the  Statute  of  Limitations,  of  debts 
incurred  by  infants,  of  debts  of  bankrupts,  are  generally  put 
for  illustration  of  the  rule.  Express  promises  founded  on 
such  pre-existing  equitable  obligations  may  be  enforced ; 
there  is  a  good  consideration  for  them ;  they  merely  remove 
an  impediment  created  by  law  to  the  recovery  of  debts  hon- 
estly due,  but  which  public  policy  protects  the  debtors  from 
being  compelled  to  pay.  In  all  these  cases  there  was  origi- 
nally a  quid  pro  quo;  and,  according  to  the  principles  of 
natural  justice,  the  party  receiving  ought  to  pay ;  but  the 
legislature  has  said  he  shall  not  be  coerced ;  then  comes  the 
promise  to  pay  the  debt  that  is  barred,  the  promise  of  the 
man  to  pay  the  debt  of  the  infant,  of  the  discharged  bank- 
rupt to  restore  to  his  creditor  what  by  the  law  he  had 


118 

lost.  In  all  these  cases  there  is  a  moral  obligation  founded 
upon  an  antecedent  valuable  consideration.  These  promises 
therefore  have  a  sound  legal  basis.  They  are  not  promises 
to  pay  something  for  nothing;  not  naked  pacts;  but  the 
voluntary  revival  or  creation  of  obligation  which  before 
existed  in  natural  law,  but  which  had  been  dispensed  with, 
not  for  the  benefit  of  the  party  obliged  solely,  but  princi- 
pally for  the  public  convenience.  If  moral  obligation,  in 
its  fullest  sense,  is  a  good  substratum  for  an  express  prom- 
ise, it  is  not  easy  to  perceive  why  it  is  not  equally  good  to 
support  an  implied  promise.  What  a  man  ought  to  do,  gen- 
erally he  ought  to  be  made  to  do,  whether  he  promise  or 
refuse.  But  the  law  of  society  has  left  most  of  such  obli- 
gations to  the  interior  forum,  as  the  tribunal  of  conscience 
has  been  aptly  called.  Is  there  not  a  moral  obligation  upon 
every  son  who  has  become  affluent  by  means  of  the  educa- 
tion and  advantages  bestowed  upon  him  by  his  father,  to 
relieve  that  father  from  pecuniary  embarrassment,  to  pro- 
mote his  comfort  and  happiness,  and  even  to  share  with 
him  his  riches,  if  thereby  he  will  be  made  happy?  And 
yet  such  a  son  may,  with  impunity,  leave  such  a  father  in  any 
degree  of  penury  above  that  which  will  expose  the  commun- 
ity in  which  he  dwells  to  the  danger  of  being  obliged  to 
preserve  him  from  absolute  want.  Is  not  a  wealthy  father 
under  strong  moral  obligation  to  advance  the  interest  of  an 
obedient,  well-disposed  son,  to  furnish  him  with  the  means 
of  acquiring  and  maintaining  a  becoming  rank  in  life,  to 
rescue  him  from  the  horrors  of  debt  incurred  by  misfor- 
tune? Yet  the  law  will  uphold  him  in  any  degree  of  parsi- 
mony, short  of  that  which  would  reduce  his  son  to  the 
necessity  of  seeking  public  charity. 

Without  doubt  there  are  great  interests  of  society  which 
justify  withholding  the  coercive  arm  of  the  law  from  these 
duties  of  imperfect  obligation,  as  they  are  called;  imper- 
fect, not  because  they  are  less  binding  upon  the  conscience 
than  those  which  are  called  perfect,  but  because  the  wisdom 
of  the  social  law  does  not  impose  sanctions  upon  them. 


119 

A  deliberate  promise  in  writing,  made  freely  and  with- 
out any  mistake,  one  which  may  lead  the  party  to  whom  it 
is  made  into  contracts  and  expenses,  cannot  be  broken  with- 
out a  violation  of  moral  duty.  But  if  there  was  nothing 
paid  or  promised  for  it,  the  law,  perhaps  wisely,  leaves  the 
execution  of  it  to  the  conscience  of  him  who  makes  it.  It 
is  only  when  the  party  making  the  promise  gains  something, 
or  he  to  whom  it  is  made  loses  something,  that  the  law  gives 
the  promise  validity.  And  in  the  case  of  the  promise  of  the 
adult  to  pay  the  debt  of  the  infant,  or  the  promise  of  the 
debtor  to  pay  a  debt  discharged  by  the  Statute  of  Limita- 
tions or  Bankruptcy,  the  principle  is  preserved  by  looking 
back  to  the  origin  of  the  transaction,  where  an  equivalent 
is  to  be  found.  An  exact  equivalent  is  not  required  by 
the  law;  for  there  being  a  consideration,  the  parties  are 
left  to  estimate  its  value ;  though  here  the  courts  of  equity 
will  step  in  to  relieve  from  gross  inadequacy  between  the 
consideration  and  the  promise. 

These  principles  are  deduced  from  the  general  current 
of  decided  cases  upon  the  subject,  as  well  as  from  the  known 
maxims  of  the  common  law.  The  general  position,  that 
moral  obligation  is  a  sufficient  consideration  for  an  express 
promise,  is  to  be  limited  in  its  application  to  cases  where  at 
some  time  or  other  a  good  or  valuable  consideration  has 
existed. 

A  legal  obligation  is  always  a  sufficient  consideration 
to  support  either  an  express  or  an  implied  promise;  such 
as  an  infant's  debt  for  necessaries,  or  a  father's  promise 
to  pay  for  the  support  and  education  of  his  minor  children. 
But  when  the  child  shall  have  attained  to  manhood  and 
shall  have  become  his  own  agent  in  the  world's  business,  the 
debts  he  incurs,  whatever  may  be  their  nature,  create  no 
obligation;  and  it  seems  to  follow,  that  a  promise  founded 
upon  such  a  debt  has  no  legally  binding  force. 

The  cases  of  instruments  under  seal  and  certain  mer- 
cantile contracts,  in  which  considerations  need  not  be  proved, 
do   not    contradict   the   principles    above    suggested.      The 


120 

first  import  a  consideration  in  themselves,  and  the  second 
belong  to  a  branch  of  the  mercantile  law,  which  has  found 
it  necessary  to  disregard  the  point  of  consideration  in  re- 
spect to  instruments  negotiable  in  their  nature  and  essential 
to  the  interests  of  commerce. 

Instead  of  citing  a  multiplicity  of  cases  to  support  the 
positions  I  have  taken,  I  will  only  refer  to  a  very  able  review 
of  all  the  cases  in  the  note  in  3  B.  &  P.  249.  The  opinions 
of  the  judges  had  been  variant  for  a  long  course  of  years 
upon  this  subject,  but  there  seems  to  be  no  case  in  which 
it  was  nakedly  decided,  that  a  promise  to  pay  the  debt  of 
a  son  of  full  age,  not  living  with  his  father,  though  the 
debt  were  incurred  by  sickness  which  ended  in  the  death 
of  the  son,  without  a  previous  request  by  the  father  proved 
or  presumed,  could  be  enforced  by  action. 

It  has  been  attempted  to  show  a  legal  obligation  on 
the  part  of  the  defendant  by  virtue  of  our  statute,  which 
compels  lineal  kindred  in  the  ascending  or  descending  line 
to  support  such  of  their  poor  relations  as  are  likely  to  be- 
come chargeable  to  the  town  where  they  have  their  set- 
tlement. But  it  is  a  sufficient  answer  to  his  position,  that 
such  legal  obligation  does  not  exist  except  in  the  very  cases 
provided  for  in  the  statute,  and  never  until  the  party  charged 
has  been  adjudged  to  be  of  sufficient  ability  thereto.  We 
do  not  know  from  the  report  any  of  the  facts  which  are 
necessary  to  create  such  an  obligation.  Whether  the  de- 
ceased had  a  legal  settlement  in  this  commonwealth  at  the 
time  of  his  death,  whether  he  was  likely  to  become  charge- 
able had  he  lived,  whether  the  defendant  was  of  sufficient 
ability,  are  essential  facts  to  be  adjudicated  by  the  court  to 
which  is  given  jurisdiction  on  this  subject.  The  legal  lia- 
bility does  not  arise,  until  these  facts  have  all  been  ascer- 
tained by  judgment,  after  hearing  the  party  intended  to  be 
charged. 

Judgment  affirmed. 


121 

Past  consideration  founded  on  a  previous  request 
WINEFIELD  v.  FEDER, 
169  111.  App.  480  (1912). 

Appeal  from  judgment  for  plaintiff. 

McSurely,  J. :  Samuel  W.  Winefield,  hereinafter  called 
the  plaintiff,  recovered  a  judgment  against  Louis  Feder, 
hereinafter  called  the  defendant,  for  $500  for  commissions 
claimed  under  a  special  verbal  contract,  whereby  the  defend- 
ant agreed  to  pay  plaintiff  said  amount  if  he  should  secure 
a  purchaser  of  real  estate  belonging  to  the  defendant,  for 
$76,000. 

It  is  sought  to  reverse  this  judgment  for  the  reason, 
as  it  is  claimed,  that  the  evidence  does  not  show  an  enforce- 
able contract  or  agreement,  and  hence  the  trial  court  should 
have  instructed  the  jury  to  find  the  issues  for  the  defendant. 

The  evidence  shows  that  the  defendant  employed  plain- 
tiff to  procure  a  purchaser  for  defendant's  property.  Plain- 
tiff did  so,  in  the  person  of  B.  J.  Cahn,  who,  after  some 
negotiations  with  the  defendant,  arrived  at  an  agreement 
with  him  as  to  the  price  and  terms  of  purchase.  At  that 
time  the  defendant  notified  plaintiff  by  telephone  that  he 
was  closing  the  deal  with  Cahn,  but  that  the  plaintiff  would 
have  to  be  satisfied  with  $500  commissions.  Plaintiff  at  first 
objected  and  wanted  $1,000,  but  finally  agreed  to  take  $500, 
saying  to  defendant,  "All  right;  go  ahead  and  close  it  up. 
I  am  satisfied."  It  was  agreed  between  the  defendant  and 
Cahn  that  Cahn  should  pay  $5,000  down,  upon  receiving  the 
contract  of  purchase  signed  by  the  defendant  and  his  wife, 
and  defendant  took  the  contract  away  with  him  to  procure 
his  wife's  signature.  Nothing  further  was  done  in  the 
matter. 

These  facts  clearly  establish  an  agreement  by  defendant 
to  pay  $500  to  the  plaintiff,  and  his  right  to  a  judgment  for 
the  same. 

As  to  the  point  that  a  past  act  cannot  serve  as  a  con- 
sideration for  a  promise,  it  is  sufficient  to  say  that  the  prior 


122 

services  were  rendered  at  the  request  of  Feder.  Our  Su- 
preme Court  in  Carson  v.  Clark,  2  111.  113  (114),  held:  "If 
the  consideration  for  the  promise  be  past  and  executed, 
it  can  then  be  enforced  only  upon  the  ground  that  the  con- 
sideration or  service  was  rendered  at  the  request  of  the 
party  promising.  This  request  must  be  averred  and  proved, 
or  the  moral  obligation  under  which  the  party  was  placed, 
and  the  beneficial  nature  of  the  service,  must  be  of  such  a 
character  that  it  will  necessarily  be  implied."  See  also  1 
Parsons  on  Contracts,  468. 

There  was  no  reversible  error  in  the  rulings  of  the  court 
upon  the  admissibility  of  testimony.  The  judgment  is  af- 
firmed. 


Editor's  Note. — When  the  services  rendered  are  understood  by 
the  parties  to  be  gratuitous,  a  subsequent  promise  to  pay  for  the 
services  is  without  consideration  and  is  unenforceable. — Moore  v. 
Elmer,  180  Mass.  15. 

"It  is  stated  in  the  notes  to  Osbourne  v.  Rogers,  1  Wms. 
Saunders,  264  b,  as  a  settled  rule  'that  a  past  consideration  is  not 
sufficient  to  support  a  subsequent  promise,  unless  there  was  a 
request  of  the  party,  express  or  implied,  at  the  time  of  performing 
the  consideration ;  but  where  there  was  an  express  request  at  the 
time,  it  would  in  all  cases  be  sufficient  to  support  a  subsequent 
promise.'  This  doctrine  seems  to  have  held  uniformly  ever  since 
the  case  of  Lampleigh  v.  Brathwaite,  decided  in  the  reign  of  Jamas 
I  and  reported  in  1  Smith's  Leading  Cases.  The  case  is  thus 
stated :  the  defendant  having  feloniously  slain  one  Patrick  Mahume 
required  the  plaintiff  to  endeavor  to  obtain  a  pardon  for  him  from 
the  king,  and  the  plaintiff  journeyed  and  labored,  at  his  own  charges 
and  by  every  means  in  his  power,  to  effect  the  desired  object,  and  the 
defendant  afterwards  and  in  consideration  of  the  premises  promised 
to  give  the  plaintiff  £100;  it  was  held  that  although  the  considera- 
tion was  passed  and  gone  before  the  promise  was  made,  yet  inas- 
much as  the  consideration  was  moved  by  the  previous  suit,  or 
request  of  the  party,  the  promise  was  binding  and  capable  of  sus- 
taining an  action.  And  in  another  case  the  plaintiff  brought  his 
action  upon  a  promise  made  by  the  defendant  to  pay  the  plaintiff 
£20,  in  consideration  that  the  plaintiff,  at  the  instance  of  the  de- 
fendant, had  taken  to  wife  the  cousin  of  the  defendant;  it  was 
held  that  the  action  was  maintainable,  although  the  marriage  was 
executed  and  past  before  the  undertaking  and  promise  was  made, 
because  the  marriage  ensued  at  the  request  of  the  defendant. — 
Bryan,  J.,  in  Pool  v.  Horner,  64  Md.  131. 


123 

Consideration  must  be  possible 

STEVENS  v.  COON, 

1  Pinn.   (Wis.)  356  (1843). 

Dunn,  C.  J. :  Error  is  brought  in  this  case  to  reverse 
a  judgment  of  the  District  Court  of  Jefferson  County. 

Coon,  plaintiff  below  in  action  of  assumpsit  against 
Stevens,  defendant  below,  to  recover  damages  on  a  liability 
growing  out  of  a  contract  which  is  in  the  words,  etc.,  fol- 
lowing, viz. : 

"Astor,  March  23d,  1839.  In  consideration  of  C.  /.  Coon 
entering  the  west  half  of  the  northwest  quarter  of  section  35,  in 
town.  13,  range  13,  I  bind  myself  that  the  said  eighty  acres  of  land 
shall  sell,  on  or  before  the  first  October  next  for  $200  or  more,  and 
the  said  Coon  agrees  to  give  me  one-half  of  the  amount  over  $200, 
said  land  may  sell  for  in  consideration  of  my  warranty.  Hamilton 
Stevens." 

"I  agree  to  the  above  contract.    C.  J.  Coon." 

*  *  *  On  the  trial,  the  above  contract,  and  the  re- 
ceiver's receipt  to  said  plaintiff  Coon,  for  the  purchase 
money  for  said  tract  of  land  described  in  said  contract, 
were  read  in  evidence  to  the  jury ;  and  Abraham  Vander- 
pool,  a  witness,  testified  "that  he  had  visited  that  part  of  the 
country  where  the  land  lies,  specified  in  said  writing,  and 
was  upon  the  same,  as  he  has  no  doubt,  and  estimated  the 
present  value  of  the  same  at  $150  per  acre,  and  that  in  Oc- 
tober, 1839,  it  might  be  worth  $125  an  acre."  Upon  this 
evidence  and  testimony  the  plaintiff  rested  his  case. 

Under  the  construction  put  on  the  contract  read  in  evi- 
dence, the  jury  found  for  the  plaintiff  $116.50,  in  dam- 
ages, and  judgment  was  entered  thereon.  There  is  manifest 
error  in  this  decision  of  the  court.  From  an  inspection  of 
the  contract,  it  is  obvious  that  it  is  not  such  an  one,  as  is 
obligatory  on  either  party.  There  is  no  reciprocity  of  bene- 
fit, and  it  binds  the  defendant  below  to  the  performance  of 
a  legal  impossibility,  so  palpable  to  the  contracting  parties, 
that  it  could  not  have  been  seriously  intended  by  the  parties 
as  obligatory  on  either.  The  undertaking  of  the  defend- 
ant below  is:  "that  plaintiff's  tract  of  land  shall  sell  for  a 


124 

certain  sum  by  a  given  day."  Is  it  not  legally  impossible 
for  him  to  perform  this  undertaking?  Certainly,  no  man 
can  in  legal  contemplation,  force  the  sale  of  another's  prop- 
erty by  a  given  day,  or  by  any  day,  as  of  his  own  act.  The 
plaintiff  was  well  apprised  of  the  deficiency  of  his  con- 
tract on  the  trial,  as  the  testimony  of  his  witness  was  en- 
tirely apart  from  the  contract  sued  on,  and  was  directed 
in  part  to  a  different  contract;  and  such  an  one  as  the  law 
would  have  recognized.  If  the  contract  had  been  that  the 
traet  of  land  would  be  worth  $200  by  a  given  day,  then  it 
could  have  been  recovered  on,  if  it  did  not  rise  to  that  value 
in  the  time.  The  district  court  should  not  have  entered 
judgment  on  the  finding  of  the  jury  in  this  case.  The  con- 
struction of  the  contract  by  the  district  court  was  erroneous. 
Judgment  reversed  with  costs. 


Failure  of  consideration 

WESTERVELT,    RESPONDENT,   v.   FULLER   MFG. 
CO.,  APPELLANT, 

13  Daly  N.  Y.  352  (1885). 

Appeal  from  a  judgment  for  defendant. 

Larremore,  J. :  This  action  was  brought  by  the  plain- 
tiff to  recover  upon  an  alleged  contract  to  pay  him  one 
hundred  dollars  for  all  his  right  and  interest  in  a  certain 
invention,  he  to  sign  all  papers  necessary  to  secure  the 
patent. 

The  agreement  commenced  with  the  following  recital: 
Whereas  I  am  the  inventor  of  "certain  improvements  in 
monkey  wrenches."  Five  dollars  were  paid  on  the  execu- 
tion of  the  contract,  by  which  it  was  stipulated  that  the  fur- 
ther sum  of  ninety-five  dollars  should  be  paid  thereafter. 


125 

The  plaintiff  further  agreed  to  sign  all  papers  necessary 
to  secure  a  patent  for  the  invention,  and  to  request  and  au- 
thorize the  Commissioner  of  Patents  to  issue  such  letters 
patent  unto  the  defendant,  and  to  do  all  else  that  would  be 
necessary  to  vest  the  title  in  said  invention  in  the  defendant. 

No  patent  was  ever  obtained  for  the  invention;  and  as 
appears  from  the  evidence,  none  could  be  obtained,  for  the 
reason  that  an  earlier  patent  for  the  same  invention  had  been 
issued  to  another  party. 

If  a  patent  had  been  issued  upon  the  plaintiff's  alleged 
invention,  and  the  defendant  had  acted  upon  it,  he  would 
not  have  been  allowed  to  question  its  legality,  under  the  rul- 
ings in  Smith  v.  Standard  Laundry  Mach.  Co.  (11  Daly 
156) ;  Union  Manuf.  Co.,  of  Norwalk  v.  Lounsbury  (41  N. 
Y.  363). 

It  is  apparent  from  the  testimony  in  this  case  that  the 
patentability  of  the  invention  was  the  consideration  of  the 
agreement  referred  to,  and  such  patent  not  having  been 
issued,  there  was  a  total  failure  of  the  consideration  of  the 
contract,  which  the  plaintiff  has  never  fully  performed.  For 
this  reason,  I  think  the  judgment  appealed  from  should  be 
affirmed. 

Having  reached  this  conclusion,  it  is  unnecessary  to 
consider  the  other  points  raised  in  the  case. 

Judgment  affirmed,  with  costs. 


Editors  Note. — An  agreement  to  convey  lands  in  consideration 
of  certain  slaves  was  made  in  1863,  and  the  vendor  of  the  lands  took 
a  bill  of  sale  of  the  slaves,  executed  by  all  the  owners  but  one,  who 
was  a  minor,  and  took  possession  of  the  slaves,  and  permitted  the 
vendees  to  take  possession  of  the  lands,  agreeing  to  convey  as  soon 
as  the  minor  became  of  age,  and  conveyed  to  him  his  interest  in  the 
slaves.  Before  the  minor  became  of  age,  the  slaves  were  emanci- 
pated by  the  thirteenth  amendment  to  the  United  States  Constitu- 
tion. Held,  that  the  vendor  was  not  entitled  to  recover  the  lands 
from  the  vendees,  because  of  a  failure  of  consideration. — Calloway 
v.  Hamby,  65  N.  C.  631   (1871). 


Chapter  III 
CAPACITY  OF  PARTIES 


CONTRACTS  OF  INFANTS 

Infants'  contracts  for  necessaries 

TUPPER  v.  CADWELL, 

53  Mass.  559  (1847). 

The  plaintiff  claimed  of  the  defendant  payment  for 
labor  done  and  materials  furnished  in  rebuilding  and  re- 
pairing house  $300.  The  defendant  filed  a  plea  stating 
among  other  things  that  he  was  an  infant.  The  jury  found 
a  verdict  for  the  plaintiff  for  $300.  *  *  *  Upon  being 
inquired  of  by  the  court,  they  stated  that  they  had  found 
the  defendant  to  be  a  minor  when  the  work  was  done,  and 
that  the  whole  of  the  plaintiff's  work  and  materials  were 
necessary.    The  defendant  excepted. 

Dewey,  J. :  An  infant  may  make  a  valid  contract  for 
necessaries ;  and  the  matter  of  doubt  in  the  present  case,  is 
that  what  expenditures  are  embraced  in  the  term  "neces- 
saries." In  Co.  Lit.  172  A.  it  is  said,  "An  infant  may  bind 
himself  to  pay  for  his  necessary  meat,  drink,  apparel,  neces- 
sary physic,  and  such  other  necessaries  and  likewise  for  his 
good  teaching  or  instruction,  whereby  he  may  profit  him- 
self afterwards."  The  term  necessaries,  it  is  well  settled, 
also  embraces  articles  for  the  support  of  his  wife  and  chil- 
dren, if  he  has  such  to  maintain.  The  wants  to  be  supplied 
are,  however,  personal,  either  those  for  the  body  as  food, 
clothing,  lodging  or  the  like ;  or  those  necessary  for  the 
proper  cultivation  of  the  mind,  an  instruction  suitable  and 
requisite  to  the  useful  development  of  the  intellectual 
powers,  and  qualifying  the  individual  to  engage  in  business 
when  he  shall  arrive  at  the  age  of  manhood.     *     *     * 

(126) 


127 

No  authority  has  been  found,  which  in  our  opinion, 
sustains  the  position  that  a  minor  is  liable  for  expenditures 
upon  his  real  estate,  of  the  character  and  under  the  circum- 
stances here  stated.  No  necessity  can  exist  for  such  ex- 
penditures, solely  upon  the  credit  of  the  minor.  The  fact 
that  he  has  real  estate  which  may  require  supervision,  and 
may  need  repairs  furnishes  the  proper  occasion  for  the 
appointment  of  a  guardian  through  whose  agencies  such  re- 
pairs can  be  made,  and,  as  the  law  assumes,  more  judiciously 
made,  than  through  the  agency  of  the  minor.  An  infant 
is  not  liable  for  goods  bought  to  furnish  his  shop,  and  to 
enable  him  usefully  to  continue  trade,  although  he  keeps  a 
public  shop.  Whittingham  v.  Hill  Cro.  Jac.  494.  In  such 
cases,  the  law  deems  the  infant  incompetent  to  carry  on 
business,  and  for  that  reason  holds  him  not  liable  for  arti- 
cles furnished  him  for  trade,  irrespective  of  the  questions 
whether,  in  the  particular  state  of  his  business  the  addition 
to  his  stock  was  actually  beneficial.  That  question  is  not 
open,  in  such  cases.  We  think  a  similar  rule  prevails  as 
to  expenditures  for  improvements  upon  the  real  estate  of  a 
minor.  The  law  deems  him  incompetent  to  make  such  con- 
tracts ;  and  they  not  being  of  the  class  embraced  in  the  term 
"necessaries,"  no  legal  liability  arises  for  such  expenditures, 
as  against  the  infant  personally.     *     *     * 

New  trial  ordered. 


Voidable  contracts  of  infants 

JOHNSON  v.  LINES, 
6  W.  &  S.  80  (1843). 

Appeal  from  judgment  for  plaintiffs. 

This  was  an  action  on  contract  by  Lines  and  Scott 
against  the  administrator  of  John  Johnson.  The  declaration 
contained  the  common  money  counts;  to  which  the  defend- 


128 

ant  pleaded  infancy  at  the  time  of  the  supposed  promise,  and 
the  plaintiffs  replied  that  the  goods  provided  were  neces- 
saries. The  defendant  asked  the  court  to  charge,  "That  the 
plaintiffs  had  no  right  to  deal  with  the  minor  even  for  neces- 
saries unless  the  guardian  refused  to  furnish  him  with 
them."  The  court  charged  "that  the  plaintiffs  had  no  right 
to  deal  with  the  deceased  unless  by  the  permission,  express 
or  implied,  of  the  guardian ;  or  unless  the  guardian  refuses 
to  furnish  necessaries  to  his  ward."  *  *  *  Verdict  and 
judgment  for  the  plaintiffs. 

Gibson,  C.  J. :  The  case  of  the  plaintiffs  below  is  poor 
in  merits.  It  appears  that  they  supplied  a  young  spendthrift 
with  goods  which  they  call  necessaries,  but  which  ill  deserve 
the  name.  Their  account  amounts  up  to  more  than  a  thou- 
sand dollars,  comprising  charges  for  many  articles  which 
might  be  ranked  with  necessaries  when  supplied  in  reason ; 
but  not  at  the  rate  of  twelve  coats,  seventeen  vests,  and 
twenty-three  pantaloons,  in  the  space  of  fifteen  months  and 
twenty-one  days ;  to  say  nothing  of  three  bowie  knives,  six- 
teen penknives,  eight  whips,  ten  whip-lashes,  thirty-nine 
handkerchiefs,  and  five  canes,  with  kid  gloves,  fur  caps, 
chip  hats  and  fancy  bag,  to  match.  Such  a  bill  makes  one 
shudder.  Yet  the  jury  found  for  the  plaintiffs  almost  their 
whole  demand,  including  sums  advanced  for  pocket  money, 
and  to  pay  for  keeping  the  minor's  horses,  which  no  one 
would  be  so  hardy  as  to  call  necessaries.  How  they  could 
reconcile  such  a  vedict  to  the  dictates  of  conscience,  I  know 
not.  They  surely  could  not  complacently  look  upon  the  ruin 
of  their  own  sons,  brought  on  by  ministering  to  their  appe- 
tites, and  stimulating  them  with  the  means  of  gratification. 
Every  father  has  a  deeper  stake  in  these  matters  than  the 
public  mind  is  accustomed  to  suppose ;  and  it  intimately  con- 
cerns the  cause  of  morality  and  virtue,  that  the  rule  of  the 
common  law  on  the  subject  be  strictly  enforced.  The  minor 
was  at  the  critical  time  of  life  when  habits  are  formed 
which  make  or  mar  the  man — which  fit  him  for  a  useful 
life,  or  send  him  to  an  untimely  grave ;  and  public  policy 


129 

demands  that  they  who  deal  with  such  a  customer,  should 
do  so  at  their  peril.  This  enormous  bill  was  run  up  at  one 
store;  and  what  other  debts  were  contracted  for  supplies 
elsewhere,  we  know  not ;  but  let  it  not  be  imagined  that  the 
infant's  transactions  with  other  dealers  did  not  concern  the 
plaintiffs.  "With  a  view  to  quantity,  and  quantity  only," 
said  Baron  Alderson,  in  Burghart  v.  Angerstein  (6  Car.  & 
P.  700),  "you  may  look  at  the  bills  of  the  other  tradesmen 
by  whom  the  defendant  was  also  supplied;  for  if  another 
tradesman  had  supplied  the  defendant  with  ten  coats,  he 
would  not  then  want  any  more,  and  any  further  supply 
would  be  unnecessary.  If  a  minor  is  supplied,  no  matter 
from  what  quarter,  with  necessaries  suitable  to  his  estate 
and  degree,  a  tradesman  cannot  recover  for  any  other  sup- 
ply made  to  the  minor  just  after."  And  the  reason  for  it  is 
a  plain  one.  The  rule  of  law  is,  that  no  one  may  deal  with 
a  minor ;  the  exception  to  it  is,  that  a  stranger  may  supply 
him  with  necessaries  proper  for  him,  in  default  of  supply 
by  any  one  else ;  but  his  interference  with  what  is  properly 
the  guardian's  business  must  rest  on  an  actual  necessity, 
of  which  he  must  judge,  in  a  measure,  at  his  peril.  In 
Ford  v.  Fothergill  (1  Esp.  R.  211;  S.  C.  Peake's  N.  P.  C. 
299),  Lord  Kenyon  ruled  it  to  be  incumbent  on  the  trades- 
man, before  trusting  to  an  appearance  of  necessity,  to  in- 
quire whether  the  minor  is  provided  by  his  parent  or 
friends.  That  case  may  be  thought  to  have  been  shaken  in 
Dalton  v.  Gib  (5  Bing.  N.  C.  198)  in  which  it  was  held 
that  inquiry  is  not  a  condition  precedent  to  recovery  where 
the  goods  seemed  to  be  necessary  from  the  outward  appear- 
ance of  the  infant,  though  the  mother  was  at  hand  and 
might  have  been  questioned  ;  but  in  Brayshaw  v.  Eaton  (Id. 
231)  this  was  explained  to  mean  that,  as  such  an  inquiry 
is  the  tradesman's  affair,  being  a  prudential  measure  for  his 
own  information,  the  omission  of  it  is  not  a  ground  of 
non-suit,  but  that  the  question  is,  on  the  fact  put  in  issue 
by  the  pleadings,  whether  the  supply  was  actually  neces- 
sary,   It  is  the  tradesman's  duty  to  know,  therefore,  not  only 


130 

that  the  supplies  are  unexceptionable  in  quantity  and  sort, 
but  also  that  they  are  actually  needed.  When  he  assumes 
the  business  of  the  guardian  for  purposes  of  present  relief, 
he  is  bound  to  execute  it  as  a  prudent  guardian  would,  and, 
consequently,  to  make  himself  acquainted  with  the  ward's 
necessities  and  circumstances.  The  credit  which  the  negli- 
gence of  the  guardian  gives  to  the  ward  ceases  as  his  neces- 
sities cease ;  and,  as  nothing  further  is  requisite  when 
these  are  relieved,  the  exception  to  the  rule  is  at  an  end.  In 
this  case  the  supply  of  articles  which  were  proper  in  kind 
was  excessive  in  quantity.  I  impute  no  intentional  wrong  to 
the  plaintiffs,  for  they  dealt  with  the  intestate,  as  others 
may  have  done,  evidently  supposing  him  to  be  sui  juris;  but 
I  certainly  do  blame  the  jury  for  finding  nearly  the  whole 
demand,  after  it  had  been  conceded  that  he  was  an  in- 
fant.    *     *     * 

Judgment  reversed  and  new  trial  awarded. 


Executed  contracts  of  infants 

RICE,  BY  HER  GUARDIAN,  ad  litem,  RESPONDENT, 
v.  WM.  BUTLER, 

160  N.  Y.  578  (1899). 

Haight,  J. :  The  appeal  in  this  case  is  based  upon  the 
certificate  of  the  appellate  division  to  the  effect  that  ques- 
tions of  law  are  involved  which  ought  to  be  reviewed  by 
this  court.    The  action  was  brought  in  the  Municipal  Court 


Editor's  Note. — Although  the  articles  supplied  to  an  infant  may 
be  of  the  nature  of  necessaries,  yet  if  the  infant  is  already  supplied  with 
such  articles,  he  can  not  be  compelled  to  pay  for  the  additional  ones, 
and  it  is  immaterial  whether  or  not  the  person  supplying  the  articles 
knew  of  the  existing  supply.  The  amount  which  may  be  recovered  for 
necessaries  supplied  to  an  infant  is  limited  to  their  fair  and  reasonable 
value  regardless  of  what  the  infant  may  have  agreed  to'pay  for  them. 
22  Cyc.  596,  598. 


131 

of  Syracuse  to  recover  the  sum  of  $26.25  paid  by  the  plain- 
tiff, a  minor,  17  years  of  age,  upon  a  contract  for  the  pur- 
chase of  a  bicycle.  The  contract  price  was  $45;  $15  were 
paid  upon  the  execution  of  the  contract,  and  the  remainder 
was  to  be  paid  in  weekly  instalments  of  $1.25.  The  plain- 
tiff purchased  the  wheel  in  June  and  used  it  until  about  the 
20th  of  September,  and  then  returned  it  to  the  defendant, 
asserting  that  she  had  been  defrauded,  and  demanding  re- 
payment of  the  amount  that  she  had  paid  upon  the  contract. 
The  defendant  took  the  wheel,  but  refused  to  return  the 
money,  claiming  that  the  use  of  the  wheel  and  its  deteriora- 
tion in  value  exceeded  the  sum  paid.  Upon  the  trial  evi- 
dence was  submitted  on  behalf  of  the  defendant  tending 
to  show  that  the  use  of  the  wheel  and  its  deterioration  in 
value  equaled  or  exceeded  the  amount  that  had  been  paid 
upon  the  contract.  The  trial  court  found  in  favor  of  the 
defendant,  thus  establishing  the  fact  that  there  had  been 
no  fraud  on  the  part  of  the  defendant  in  making  the  con- 
tract. 

It  is  now  contended  that  the  contract  was  executory, 
and  that,  being  such,  the  plaintiff  had  the  right  to  rescind 
and  recover  back  the  amount  paid.  The  Appellate  Divi- 
sion appears  to  have  taken  this  view  of  the  case,  and  has 
reversed  the  judgment.  The  question  thus  presented 
may  not  be  free  from  difficulty.  There  are  numerous 
authorities  bearing  upon  the  question,  but  they  are  not 
in  entire  harmony.  *  *  *  The  contract  in  this  case 
in  its  entirety  must  be  held  to  be  executory;  for,  under  its 
terms,  payments  were  to  mature  in  the  future  and  the  title 
was  only  to  pass  to  the  minor  upon  making  all  of  the  pay- 
ments stipulated;  but  insofar  as  the  payments  made  were 
concerned,  the  contract  was  in  a  sense  executed,  for  noth- 
ing further  remained  to  be  done  with  reference  to  those 
payments.  Kent  in  his  Commentaries  (Vol.  2,  page  240) 
says:  "If  an  infant  pays  money  on  his  contract  and  enjoys 
the  benefit  of  it,  and  then  avoids  it  when  he  comes  of  age, 
he  cannot  recover  back  the  consideration  paid.  On  the 
other  hand,  if  he  avoids  an  executed  contract  when  he 
comes  of  age  on  the  ground  of  infancy,  he  must  restore  the 
consideration  which  he  had  received.  The  privilege  of  in- 
fancy is  to  be  used  as  a  shield,  and  not  as  a  sword.     He 


132 

cannot  have  the  benefit  of  the  contract  on  one  side  without 
returning  the  equivalent  on  the  other." 

In  the  case  of  Grey  v.  Lessinglon  (2  Bosw.  257)  a 
young  lady  during  her  minority  had  purchased  a  quantity  of 
household  furniture,  paying  about  half  of  the  purchase  price, 
and  had  given  her  note  for  the  balance.  She  subsequently 
rescinded  the  contract  and  sought  to  recover  the  amount 
that  she  had  paid.  She  had  had  the  use  of  the  furniture 
in  the  meantime,  and  it  was  held  that  she  must  account  for 
its  deterioration  in  value.  Woodruff,  J.,  in  delivering  the 
opinion  of  the  court,  says :  "When  it  becomes  necessary  for 
an  infant  to  go  into  a  court  of  equity,  to  cancel  her  obliga- 
tions or  regain  the  pledge  given  for  their  performance,  seek- 
ing equity,  she  must  do  equity.  Making  full  satisfaction  for 
the  deterioration  of  the  property,  arising  from  its  use,  is  do- 
ing no  more.  Presumptively,  she  has  derived  from  the  use 
of  the  property  a  profit  or  benefit  equivalent  to  such  de- 
terioration." 

In  the  case  of  Medbury  v.  Watrous  (7  Hill  110)  an  ac- 
tion was  brought  by  an  infant  to  recover  for  services  per- 
formed, of  the  value  of  $70.  The  defense  was  that  the  work 
was  done  in  part  performance  of  a  covenant  to  purchase  of 
the  defendant  a  house  and  lot  for  the  sum  of  $600.  He  had 
not  entered  into  the  possession  of  the  house  and  lot  and  had 
received  no  benefits  from  the  purchase.  It  was  held  that 
he  could  rescind  the  contract,  and,  having  received  noth- 
ing under  it,  he  could  recover  upon  a  quantum  meruit  for 
the  work  performed.  Beardsley,  J.,  delivering  the  opinion 
of  the  court,  refers  to  the  rule  laid  down  by  Chancellor 
Kent,  and  then  to  the  case  of  Holmes  v.  Blogg  (8  Taunt. 
508),  and  says,  with  reference  to  the  latter  case:  "It  was 
not  shown  what  had  been  the  value  of  the  use  of  the 
premises  demised  while  the  infant  remained  in  posses- 
sion. If  that  was  less  than  the  sum  paid  by  him,  it  may 
well  be  that  he  ought  to  have  recovered  the  difference."  It 
will  thus  be  seen  that  the  cases  to  which  we  have  alluded 
recognize  the  principle  which  we  think  ought  to  be  applied 
to  this  case,  and  that  is  that  the  plaintiff,  having  had  the 


133 

use  of  the  bicycle  during  the  time  intervening  between  her 
purchase  and  its  return,  ought,  in  justice  and  fairness,  to 
account  for  its  reasonable  use  or  deterioration  in  value. 
Otherwise  she  would  be  making  use  of  the  privilege  of  in- 
fancy as  a  sword  and  not  as  a  shield.  In  the  absence  of 
wanton  injury  to  the  property,  the  value  of  the  use  would 
be  deemed  to  include  the  deterioration  in  value,  and  under 
the  evidence  in  this  case,  as  found  by  the  trial  court,  the  use 
equaled  the  sum  paid.  Our  attention  has  been  called  to 
the  case  of  Pyne  v.  Wood  (145  Mass.  558),  but  we  think 
the  rule  suggested  by  us  is  more  equitable  and  that  it  should 
not  be  followed. 

Judgment  of  the  Appellate  Division  is  reversed. 


Effect  of  disaffirmance 

CARR  v.  CLOUGH, 

26  N.  H.  280  (1853). 

Trover  for  a  horse.  It  appeared  in  evidence  that  the 
plaintiff  and  the  defendant  exchanged  horses,  and  that 
upon  the  exchange  the  plaintiff,  a  minor,  being  the  owner 
of  the  horse  in  question,  delivered  the  same  to  the  defend- 
ant in  exchange  for  a  mare,  which  the  defendant  delivered 
to  the  plaintiff;  the  defendant  at  the  same  time  agreeing  to 
pay  plaintiff  the  sum  of  $10  on  the  following  day.  On  the 
Monday  next  after  the  exchange  the  plaintiff  told  the  de- 
fendant he  wanted  to  trade  back,  and  the  defendant  said 


Editor's  Note. — In  Gillis  v.  Goodwin  (180  Mass.  140)  an  infant 
had  purchased  a  bicycle  on  time  payments.  After  using  the  bicycle 
for  some  time,  he  disaffirmed  the  contract  and  sued  for  the  money 
he  had  paid.  It  was  held  that  he  could  recover  and  that  the  defendant 
was  not  entitled  to  anything  for  the  rent  and  use  of  the  bicycle  while 
it  was  being  used  by  the  plaintiff.  This  rule  which  is  contrary  to  Rice 
v.  Butler,  is  followed  in  many  jurisdictions. 


134 

he  would  not  do  it  unless  the  plaintiff  would  pay  him  $15. 
The  defendant  then  told  the  plaintiff  that  he  would  come 
up  the  next  morning  and  pay  the  boot,  but  he  did  not  do  it. 
About  three  months  later  the  plaintiff  went  to  the  house  of 
the  defendant,  taking  the  mare  with  him,  and  offered  to  re- 
turn her  to  the  defendant,  and  informed  him  that  he  would 
not  abide  by  the  trade,  and  requested  the  defendant  to  de- 
liver him  the  horse  in  controversy.  But  the  defendant  re- 
fused to  do  it,  saying  that  he  would  not  let  him  have  the 
horse,  and  would  not  receive  back  the  mare.  The  mare 
was  at  that  time  in  good  condition,  and  of  as  great  value 
as  at  the  date  of  exchange.  The  defendant  had  sold  the 
horse  before  the  conversation  last  above  mentioned.  Ver- 
dict for  plaintiff.  It  was  agreed  that  judgment  should  be 
rendered  on  the  verdict  or  the  verdict  set  aside  and  new 
trial  granted,  according  to  the  opinion  of  the  court. 

Eastman,  J. :  *  *  *  If  the  subject  of  the  sale  be 
personal  property,  and  a  delivery  to  and  possession  by,  the 
vendee  follows,  and  there  are  no  legal  means  to  regain  the 
property  till  the  minor  arrives  at  full  age,  so  as  to  decide 
whether  he  will  ratify  the  contract  or  not,  the  property 
may  all  be  wasted  and  gone  beyond  recovery,  and  in  many 
cases  for  a  very  inadequate  consideration.  In  such  cases 
the  principle  of  protection  would  be  of  little  use  could  it 
not  be  exercised  before  maturity.  We  lay  down  the  rule, 
then,  that  a  sale  and  delivery  of  personal  property  by  a 
minor,  for  a  good  consideration,  but  made  without  fraud 
by  him,  may  be  rescinded  by  the  minor  before  arriving 
at  full  age  (Stafford  v.  Roof,  9  Cow.  629,  etc.),  but  if  the 
infant  rescinds  the  contract  and  seeks  to  recover  the  article 
sold  by  him,  he  must  restore  the  property  or  consideration 
received  before  he  can  maintain  his  action  for  the  property 
sold.  This  is  but  even-handed  justice,  and  the  contrary 
doctrine  would  oftentimes  enable  the  infant  to  use  his 
minority  for  the  perpetration  of  gross  fraud.     *     *     * 

Badger  v.  Finney,  15  Mass.  363,  was  replevin,  and  the 
precise  point  decided  was  this:  that  where  goods  are  sold 
to  an  infant  on  a  credit  znd  he  avails  himself  of  his  infancy 


135 

to  avoid  a  payment,  the  vendor  may  reclaim  the  goods  as 
having  never  parted  with  his  property  to  them.  In  Fitz  v. 
Hall  (9  N.  H.  441)  it  was  held  that  if  an  infant  disaffirms 
a  contract  by  which  goods  have  been  sold  to  him,  if  he  has 
the  goods  in  his  possession  and  refuses  to  deliver  them 
to  the  vendor  upon  a  demand  for  that  purpose,  trover 
may  be  maintained  against  him  for  the  conversion.  The 
same  case  also  lays  down  the  principle  that  where  the 
property  is  passed  from  the  hands  of  the  infant,  trover 
will  not  lie,  although  if  there  has  been  fraud  practiced  by 
the  infant  a  special  action  on  the  case  may  be  sustained. 
The  doctrine  upon  this  point  is  gathered  from  the  weight 
of  authority,  and  which  seems  to  be  founded  in  good  rea- 
son, appears  to  be  this :  First,  that  the  infant  shall  not 
be  permitted  to  rescind  his  contract  and  recover  the  arti- 
cles parted  with  by  him  without  first  restoring  the  property 
or  consideration  received  therefor.  Second,  that  in  case 
of  sale  by  an  adult  to  an  infant,  if  the  adult  demands  the 
payment  or  consideration  promised  by  the  infant,  and  he 
disaffirms  the  contract  and  refuses  payment,  or  if  suit  be 
brought  against  him,  pleads  infancy  and  avoids  the  debt, 
the  adult  may  thereafter,  in  case  the  property  be  in  the  in- 
fant's possession,  maintain  replevin  therefor,  or  demand  the 
property,  and  upon  refusal  bring  trover  and  recover  its 
value.  If,  however,  the  infant  has  parted  with  possession 
of  the  property  sold  him,  the  adult  is  remediless,  provided 
there  has  been  no  fraud  practiced.  It  follows  also  in  the 
absence  of  fraud  where  the  contract  is  fully  executed  that 
until  the  same  is  rescinded  the  adult  has  the  right  to  property 
which  he  has  received,  and  has  the  right  to  make  a  bona 
fide  sale  of  the  same  before  the  rescission. 
Judgment  on  the  verdict. 

Editor's  Note. — An  infant's  contracts  are  as  a  rule  merely  voidable. 
The  right  to  avoid  is  personal  to  the  infant,  or  his  guardian,  or  his 
personal  representatives  after  his  death.  The  adult  can  not  avoid  a 
contract  on  account  of  the  other's  infancy. 

The  time  for  avoidance  by  an  infant,  of  sales,  mortgages  or  other 
transactions  affecting  realty,  is  after  his  arrival  at  majority.  As  to 
transactions  in  relation  to  personal  property  the  disaffirmance  may  be 
effected  as  well  before  as  after  majority.  Disaffirmance  may  be  either 
express  or  implied. 

On  the  other  hand  an  infant  may  ratify  a  contract  made  during 
infancy  when  he  reaches  his  majority.  Ratification  likewise  may  be 
either  express  or  implied.    22  Cyc.  503  et  seq. 


136 
Return  of  consideration  after  disaffirmance 

SAMUEL   CHANDLER   &  ANOTHER   v.   CHAS.    N. 
SIMMONS, 

97  Mass.  508  (1867). 

Writ  of  Entry  in  behalf  of  Samuel  Chandler  and  John 
E.  Chandler,  as  tenants  in  common,  by  their  guardian, 
Weston  Earle,  to  recover  a  tract  of  land  in  Dighton.  Plea, 
nul  disseisin,  with  an  averment  of  title  in  the  tenant. 

Wells,  J. :  These  exceptions  bring  up  the  instructions 
under  which  the  right  of  John  E.  Chandler  to  recover  cer- 
tain land  was  submitted  to  the  jury.  The  defense  was 
based  upon  a  conveyance  made  by  John  E.  Chandler  while 
a  minor,  and  ratified  by  him  after  he  became  of  age.  No 
question  is  made  but  that  he  is  completely  divested  of  his 
title,  unless  the  pendency  of  proceedings  against  him  as  a 
spendthrift  deprived  him  of  the  right  to  confirm  his  deed. 

A  deed  obtained  by  undue  influence,  though  voidable 
only  by  the  party  wronged,  may  be  avoided  by  a  guardian 
afterwards  appointed.  Somes  v.  Skinner,  16  Mass.  348. 
The  rights  of  the  ward  are  to  be  asserted  in  his  own  name, 
but  upon  the  appointment  of  a  guardian  all  discretion  as  to 
their  exercise  is  taken  from  the  ward  and  thenceforward 
intrusted  to  the  guardian.  A  spendthrift  under  guardian- 
ship cannot  even  make  an  acknowledgment  that  will  take 
his  debt  out  of  the  statute  of  limitations.  But  his  guardian 
may  bind  the  estate  of  the  ward  by  such  an  acknowledg- 
ment. Manson  v.  Felton,  13  Pick.  206-211.  This  is  not 
denied  as  a  general  proposition,  but  it  is  contended  that 
the  right  of  a  minor  to  avoid  or  affirm  his  deed  stands 
upon  a  different  footing;  that  it  is  a  personal  privilege,  to 
be  exercised  only  by  the  minor  himself.  The  case  of 
Oliver  v.  Houdlet,  13  Mass.  237-240,  is  cited  as  authority 
to  the  point  that  the  guardian  of  a  minor  cannot  avoid  his 
deed  on  the  ground  of  minority.  If  that  be  so,  it  must  be 
for  the  reason  that  the  election,  whether  to  avoid  or  affirm, 


137 

is  reserved  to  the  minor  until  he  shall  be  of  age,  and  that 
a  previous  determination  of  his  right  by  the  guardian 
would  be  inconsistent  with  such  a  privilege  in  the  ward. 
It  has,  indeed,  sometimes  been  held  that  the  minor  himself 
cannot  avoid  his  deed  until  he  is  of  age.  Bool  v.  Mix,  17 
Wend.  119.  It  is  undoubtedly  true  that  he  cannot  affirm  it 
till  then.  But  it  is  at  least  questionable  whether  he  can  be 
deprived  of  the  right  to  re-enter  or  recover  his  property  by 
suit  while  his  minority  continues.  After  he  is  of  full  age, 
if  unable  to  exercise  his  privilege,  by  reason  of  mental  or 
legal  capacity,  it  seems  reasonable  and  consistent  with  the 
nature  and  purpose  of  this  right  that  it  should  be  exercised 
for  him  and  in  his  name  by  the  guardian  who  may  have 
charge  of  his  interests.  Otherwise  he  might  be  remediless 
for  most  serious  impositions,  as  he  can  do  no  legally  valid 
act  himself.  The  right  may  be  asserted  by  heirs,  and  we 
cannot  doubt  that  it  may  be  also  by  a  guardian  appointed 
over  his  property  for  any  cause  for  which  adult  persons 
are  placed  under  guardianship. 

Upon  the  second  point  it  is  urged  that  the  deed  of  a 
minor  may  be  confirmed  by  a  mere  waiver  of  the  right  to 
avoid,  or  by  implication  from  his  acts,  or  even  from  his  neg- 
lect to  exercise  the  right,  and  therefore  that  the  confirma- 
tion of  a  deed,  by  which  the  title  and  seisin  have  already 
passed  to  the  grantees,  is  not  a  contract  nor  a  sale  or 
transfer  of  real  estate  within  the  meaning  of  the  statute. 
To  this  it  may  be  answered  that  even  a  ratification  by 
waiver,  or  implied  from  acts  or  from  omission  to  avoid,  re- 
quires in  the  party,  whose  right  is  thus  determined,  a  mental 
and  legal  capacity  to  exercise  the  right  and  to  bind  himself 
by  such  act  or  omission  to  act.  But  the  question  here  does 
not  turn  upon  the  precise  designation  to  be  given  to  the  con- 
firmation of  a  deed  in  the  modes  suggested.  It  relates  to 
positive  agreements  or  acts  of  release  or  waiver,  by  which 
the  party  deprives  himself  and  those  representing  him  of 
all  right  thereafter  to  avoid  the  deed  and  re-enter  upon  the 
estate.     Such  acts  are  certainlv  in  the  nature  of  contract, 


138 

and  require  all  the  elements  of  a  contract  (except  a  new 
consideration)  to  give  them  effect.     *     *     * 

Another  ground  relied  on  by  the  defendant  is  that  the 
(ieed  cannot  be  avoided  without  a  return  of  the  considera- 
tion. We  do  not  understand  such  a  condition  is  ever  at- 
tached to  the  right  of  a  minor  to  avoid  his  deed.  If  it  were 
so,  the  privilege  would  fail  to  protect  him  when  most  needed. 
It  is  to  guard  him  against  the  improvidence  which  is  incident 
to  his  immaturity  that  this  right  is  maintained.  If  the 
minor,  when  avoiding  his  contract,  have  in  his  hands  any 
of  its  fruits  specifically,  the  act  of  avoiding  the  contract 
by  which  he  acquired  such  property  will  divest  him  of  all 
right  to  retain  the  same ;  and  the  other  party  may  reclaim 
it.  He  cannot  avoid  in  part  only,  but  must  make  the  con- 
tract wholly  void  if  at  all,  so  that  it  will  no  longer  protect 
him  in  the  retention  of  the  consideration.  Badger  v.  Phin- 
ney,  15  Mass.  359.  Or  if  he  retain  and  use  or  dispose  of 
such  property  after  becoming  of  age,  it  may  be  held  as 
an  affirmance  of  the  contract  by  which  he  acquired  it,  and 
thus  deprive  him  of  the  right  to  avoid.  Boyden  v.  Boyden, 
9  Met.  519.  But  if  the  consideration  has  passed  from  his 
hands,  either  wasted  or  expended  during  his  minority,  he 
is  not  thereby  to  be  deprived  of  his  right  or  capacity  to 
avoid  his  deed,  any  more  than  he  is  to  avoid  his  executory 
contracts.  And  the  adult  who  deals  with  him  must  seek 
the  return  of  the  consideration  paid  or  deliver  to  the  minor 
in  the  same  modes  and  with  the  same  chances  of  loss  in 
the  one  case  as  in  the  other.  Dana  v.  Stearns,  3  Cush. 
372-376.  It  is  not  necessary,  in  order  to  give  effect  to  the 
disaffirmance  of  the  deed  or  contract  of  a  minor,  that  the 
other  party  should  be  placed  in  statu  quo.  Tucker  v.  More- 
land,  10  Pet.  65-74. 

Upon  the  case  as  stated  in  the  exceptions  we  are  of 
opinion  that  the  attempt  of  John  E.  Chandler  to  ratify  his 
deed  was  ineffectual,  and  that  it  may  be  avoided  now  by 
his  guardian  without  the  previous  return,  or  the  offer  to 


139 

return,  the  consideration  paid  herefor.     The  ruling  of  the 
Superior  Court  appears  to  have  been  otherwise,  and  there- 
fore these  exceptions  must  be  sustained. 
Exceptions  sustained. 

Liability  of  infants  for  deceit 
RICE  v.  BOYER, 
108  Ind.  472  (1886). 
Appeal  from  judgment  for  defendant  on  demurrer. 
Elliott,  C.  J. :     It  is  alleged  in  the  complaint  of  the 
appellant    that    the    appellee,    with    intent   to    defraud   the 
appellant,  falsely  and  fraudulently  represented  that  he  was 
twenty-one  years  of  age ;  that,  relying  upon  this  represen- 
tation, the  appellant  was  induced  to  sell  and  deliver  to  the 


Editor's  Note. — The  law  regarding  the  right  of  an  infant  to  avoid 
his  contracts  is  uniform  in  all  states  on  some  points,  but  differs  in  many 
states  on  others: 

(a)  AS  REGARDS  NECESSARIES 

1.  All  authorities  agree  that  an  infant  may  disaffirm  an  executory 
contract  to  purchase  necessaries. 

2.  Almost  all  authorities  agree  that  an  infant  is  bound  on  his 
executed  contracts  for  necessaries,  that  is  he  must  pay  for  necessaries 
actually  supplied,  or  if  he  has  paid  for  them  he  may  not  avoid  the 
contract  and  recover  the  price.  This  rule  has  been  changed  in  Penn- 
sylvania where  the  statute  provides  that  "where  necessaries  are  sold 
and  delivered  to  an  infant  he  must  pay  a  reasonable  price  therefor 
or  return  the  goods  in  substantially  the  same  condition  as  when  received, 
within  a  reasonable  time." 

(b)  AS  REGARDS  CONTRACTS  OTHER  THAN  FOR 
NECESSARIES 

1.  All  authorities  agree  that  an  infant  may  disaffirm  and  avoid 
Any  purely  executory  contract. 

Illustration. — An  infant  agrees  to  subscribe  for  stock  in  a  cor- 
poration to  be  formed.  When  demand,  is  made  upon  him  to  meet  his 
subscription  he  may  disaffirm  and  resist  an  action  for  the  price. 

2.  Most  authorities  agree  that  an  infant  may  disaffirm  a  contract 
in  which  he  has  received  the  consideration,  but  which  has  not  been 
executed  by  him.  In  other  words  he  may  use  infancy  as  a  defense  to 
avoid  the  enforcement  of  a  contract  against  him.  In  such  a  case,  he 
must  upon  disaffirmance  return  the  consideration,  if  he  has  it,  but  if 
he  has  wasted  it  he  may  disaffirm  without  the  return  thereof. 

Illustration. — An  infant  purchases  an  automobile  on  credit  and 
wears  it  out  in  pleasure  riding.  When  sued  for  the  price  his  plea  of 
infancy  is  a  complete  defense. 

3.  Most  authorities  agree  that  an  infant  may  avoid  his  executed 
contracts  if  he  can  put  the  other  party  in  statu  quo. 

Illustration. — An  infant  exchanges  his  automobile  for  a  horse. 
In  such  a  case  he  can  by  returning  the  horse,  compel  the  return  of  his 
automobile. 

4.  Authorities  are  not  agreed  as  to  whether  an  infant  can  avoid 
an  executed  contract  and  recover  his  consideration  when  he  can  not 
put  the  other  party  in  statu  quo.  In  regard  to  contracts  affecting  real 
estate  the  cases  almost  uniformly  hold  that  he  may  disaffirm  them 
regardless  of  whether  or  not  he  can  return  the  consideration,  as  in 
Chanciles  v.  Simmons,  supra.  Many  authorities  hold  a  similar  rule 
concerning  all  executed  contracts.  The  case  of  Rice  v.  Butler,  supra, 
holds  the  contrary  and  while  it  is  not  given  as  a  final  authority,  it  is 
thought  to  be  a  well  considered  case  on  the  point.    See  22  Cyc.  503  et  seq. 


140 

appellee,  on  one  year's  credit,  a  buggy  and  a  set  of  harness, 
and  that  the  appellee's  representation  was  untrue. 

To  this  complaint  a  demurrer  was  sustained,  and  error 
is  assigned  on  that  ruling.     *     *     * 

The  material  and  controlling  question  in  the  case  is 
this :  Will  an  action  to  recover  the  actual  loss  sustained  by 
a  plaintiff  lie  against  an  infant  who  has  obtained  property 
on  the  faith  of  false  and  fraudulent  representation  that  he  is 
of  full  age? 

Infants  are,  in  many  cases,  liable  for  torts  committed 
by  them,  but  they  are  not  liable  where  the  wrong  is  con- 
nected with  a  contract,  and  the  result  of  the  judgment  is  to 
indirectly  enforce  the  contract.  Judge  Cooley  says:  "If 
the  wrong  grows  out  of  contract  relations,  and  the  real 
injury  consists  in  the  non-performance  of  the  contract  into 
which  the  party  wronged  has  entered  with  an  infant,  the 
law  will  not  permit  the  former  to  enforce  the  contract  indi- 
rectly by  counting  on  the  infant's  neglect  to  perform  it  or 
omission  of  duty  under  it  as  a  tort."     *     *     * 

"So  if  an  infant  effects  a  sale  by  means  of  deception 
and  fraud,  his  infancy  protects  him."  Cooley  Torts  106, 
107.  Addison,  following  the  English  cases,  says  an  infant 
is  not  liable  "if  the  cause  of  action  is  grounded  on  matter 
of  contract  with  the  infant,  and  constitutes  a  breach  of  con- 
tract, as  well  as  a  tort."  Addison  Torts,  1,314.  Upon  this 
principle  it  has  been  held  in  some  of  the  cases  that  an  infant 
is  not  liable  for  the  value  of  property  obtained  by  means  of 
false  representations.     *     *     * 

It  is  also  firmly  held  that  an  infant  is  not  estopped  by 
the  false  representation  as  to  his  age ;  but  this  doctrine  rests 
upon  the  principle  that  one  under  the  disability  of  coverture 
or  infancy  has  no  power  to  remove  the  disability  by  the  rep- 
resentation.   Carpenter  v.  Carpenter,  45  Ind.  142.     *     *     * 

Our  judgment  is  that  where  an  infant  does  fraudulently 
and  falsely  represent  that  he  is  of  full  age  he  is  liable  in  an 
action  ex-delicto  for  the  injury  resulting  from  his  tort.  This 
result  does  not  involve  a  violation  of  the  principle  that  an 


141 

infant  is  not  liable  where  the  consequences  would  be  an  in- 
direct enforcement  of  his  contract,  for  the  recovery  is  not 
upon  the  contract,  as  that  is  treated  as  of  no  effect;  nor  is 
he  made  to  pay  the  contract  price  of  the  article  purchased 
by  him,  as  he  is  only  held  to  answer  for  the  actual  loss 
caused  by  his  fraud.  In  holding  him  responsible  for  the 
consequences  of  his  wrong  an  equitable  conclusion  is  reached, 
and  one  which  strictly  harmonizes  with  the  general  doctrine 
that  an  infant  is  liable  for  his  torts.  Nor  does  our  conclu- 
sion invalidate  the  doctrine  that  an  infant  has  no  power  to 
deny  his  disability,  for  it  concedes  this,  but  affirms  that  he 
must  answer  for  his  positive  fraud. 

Our  conclusion  that  an  infant  is  liable  in  tort  for  the 
actual  loss  resulting  from  a  false  and  fraudulent  representa- 
tion of  his  age  is  well  sustained  by  authority,  and  it  is 
strongly  entrenched  in  principle,  although,  as  we  have  said, 
there  is  a  fierce  conflict.     *     *     * 

There  are  many  cases,  far  too  numerous  for  citation, 
where  there  is  some  connection  between  the  contract  and 
the  tort,  and  yet  it  is  unhesitatingly  held  that  the  infant  is 
liable  for  his  tort.  Cooley  Torts,  112.  The  cases  certainly 
do  agree.  It  is,  indeed,  difficult,  if  not  impossible,  to  per- 
ceive how  it  could  be  otherwise  that,  although  there  may 
be  some  connection  between  the  contract  and  the  wrong, 
the  infant  may  be  liable  for  his  tort.  It  seems  to  us  that 
the  only  logical  and  defensible  conclusion  is  that  he  is  lia- 
ble to  the  extent  of  the  loss  actually  sustained  for  his  tort, 
where  recovery  can  be  had  without  giving  effect  to  his  con- 
tract. The  test,  and  the  only  satisfactory  test,  is  supplied 
by  the  answer  to  the  question :  Can  the  infant  be  held  lia- 
ble without  directly  or  indirectly  enforcing  his  promise? 
There  is  no  enforcement  of  promise  where  an  infant  who 
has  been  guilty  of  a  positive  fraud  is  made  to  answer  for 
the  actual  loss  his  wrong  has  caused  to  one  who  has 
dealt  with  him  in  good  faith  and  has  exercised  due  dili- 
gence.    *     *     * 

It  may  often  happen  that  the  age  and  appearance  of 
the  infant  will  be  such  as  to  preclude  a  recovery  for  a  fraud, 


142 

because  reasonable  diligence  which  is  exacted  in  all  cases, 
would  warn  the  plaintiff  of  the  non-age  of  the  defendant. 
On  the  other  hand,  the  infant  may  be  in  years  almost  of 
full  age,  and  in  appearance  entirely  so,  and  thus  deceive  the 
most  diligent  by  his  representations.  Suppose  a  minor,  who 
is  really  twenty  years  and  ten  months  old,  but  in  appear- 
ance a  man  of  full  age,  should  obtain  goods  by  falsely  and 
fraudulently  representing  that  he  is  twenty-one  years  of  age, 
ought  he  not,  on  the  plainest  principles  of  natural  justice, 
to  be  held  liable,  not  on  his  contracts,  but  for  a  loss  occa- 
sioned by  his  fraud? 

The  rule  which  we  adopt  will  enable  courts  to  protect, 
in  some  measure,  the  honest  and  diligent,  but  none  other, 
who  are  misled  by  a  false  and  fraudulent  representation, 
and  it  will  not  open  the  way  to  imposition  upon  infants, 
for,  in  no  event,  can  anything  more  than  the  actual  loss 
sustained  be  recovered,  and  no  person  who  trusts,  where 
fair  dealing  and  due  intelligence  require  him  not  to  trust, 
can  reap  any  benefit.  It  will  not  apply  to  an  executory 
contract  which  an  infant  refuses  to  perform,  for,  in  such  a 
case,  the  action  would  be  on  the  promise,  and  the  only 
recovery  that  could  be  had  for  the  breach  of  contract,  and 
the  terms  of  our  rule  forbid  such  a  result,  but  it  will  apply 
where  an  infant,  on  the  faith  of  his  false  and  fraudulent 
representation  obtains  property  from  another  and  then  repu- 
diates his  contract.  *  *  *  We  are  unwilling  to  sanction 
any  rule  which  will  enable  an  infant  who  has  obtained  the 
property  of  another,  by  falsely  and  fraudulently  repre- 
senting himself  to  be  of  full  age,  to  enjoy  the  fruits  of  his 
fraud,  either  by  keeping  the  property  himself  or  selling  it 
to  another,  and  when  asked  to  pay  its  just  and  reasonable 
value  successfully  plead  his  infancy.  Such  a  rule  would 
make  the  defense  of  infancy  both  a  shield  and  a  sword,  and 
this  is  a  result  which  the  principles  of  justice  forbid,  for 
they  require  that  it  should  be  merely  a  shield  of  defense. 

Judgment  reversed,  with  instructions  to  overrule  the 
demurrer  to  the  complaint. 

Editor's  Note.— Infancy  is  no  defense  to  an  action  of  tort  for  assault, 
breach  of  trust,  conversion,  embezzlement,  libel,  slander,  negligence, 
trespass,  etc.     22  Cyc.  619. 


143 

CONTRACTS  OF  PERSONS  MENTALLY 
DEFICIENT 

What  constitutes  mental  incapacity — Insanity 

EUROPE  A.  LILY,  APPELLANT,  v.  GEORGE  WAG- 
GONER, CONSERVATOR  OF  ELISHA  WAG- 
GONER, APPELLEE. 

27  111.  395  (1862). 

Appeal  from  decree  for  complainant. 

This  suit  was  commenced  by  a  bill  in  chancery,  by 
George  Waggoner  as  conservator  of  the  estate  of  Elisha 
Waggoner,  for  the  purpose  of  setting  aside  a  conveyance 
of  real  estate  made  by  Elisha  Waggoner  to  the  appellant, 
Lily,  in  1851,  upon  the  ground  that  said  Elisha  was  insane 
at  the  time  of  selling  and  conveying  the  property. 

The  bill  alleges  that,  in  1858,  an  inquest  was  held  upon 
said  Elisha  Waggoner,  and  George  Waggoner  appointed  as 
conservator  of  the  estate  of  Elisha  Waggoner,  and  that  for 
a  long  period  previous  to  the  inquest,  said  Elisha  was  in- 
sane, and  that  during  such  insanity  he  conveyed  the  land 
described  in  the  bill  to  Lily.  Lily's  answer  admitted  the 
conveyance  and  alleged  that  a  full  consideration  was  paid 
for  the  land ;  that  he,  Lily,  is  in  possession  of  the  land, 
*  *  *  and  that  the  said  Elisha  was  not  insane  at  the 
time  of  making  the  conveyance,  but  legally  competent  to 
make  it. 

Walker,  J.:  Does  the  evidence  in  this  case  establish 
the  fact  that  Elisha  Waggoner  was  of  non-sane  mind,  so 
as  to  avoid  his  conveyance  to  appellant?  It  may  be  truly 
said  that  there  are  few  questions  which  present  greater 
difficulties  in  their  solution  than  those  of  insanity.  It 
assumes  such  a  variety  of  forms,  from  that  of  a  raving  mad 
man  to  the  monomaniac ;  from  total  dementia,  to  that  of 
scarcely  perceptible  insanity,  that  it  has  almost  been  denied, 
that  any  person  is  perfectly  sane,  on  any  subject.  But  the 
law  only  regards  it,  when  it  renders  the  subject  non  com- 


144 

pos  mentis,  or  that  condition  of  the  mental  faculties  exists 
which  renders  the  subject  incapable  of  acting  rationally  in 
the  ordinary  affairs  of  life.  It  is  that  degree  of  mental 
derangement  which  renders  the  person  affected  incapable 
of  understanding  the  effect  and  consequences  of  his  acts.  It 
need  not  be  of  that  total  derangement,  or  rather  obliteration 
of  the  faculties,  which  prevents  the  party  from  reasoning 
upon  all  subjects.  Nor  yet  the  want  of  power  at  all  times 
upon  correct  premises,  to  arrive  at  accurate  conclusions, 
but  it  is  that  want  of  power  which  prevents  a  person  from 
reasoning,  or  understanding  the  relation  of  cause  and  effect. 

Persons  of  equal  natural  mental  capacity  from  differ- 
ence in  education,  pursuits  and  opportunity  manifest  differ- 
ent degrees  of  mental  vigor.  The  law  has  never  required 
the  high  order  of  reasoning  powers  that  mark  the  gifted, 
or  a  large  portion  of  the  human  family  would  be  thus  de- 
prived of  the  legal  capacity  to  transact  their  own  business. 
But  if  the  person  manifest  an  ordinary  degree  of  intelli- 
gence and  judgment,  or  even  less,  in  reference  to  his  busi- 
ness pursuits,  and  especially  upon  the  subject  in  dispute,  at 
the  time  of  transaction,  it  is  all  that  is  required. 

A  person  may  be  a  lunatic,  and  yet  have  lucid  inter- 
vals, and  the  law  has,  at  all  times,  held  that  a  contract 
entered  into,  during  a  lucid  period,  is  valid,  while  those 
made  during  a  fit  of  insanity  may  be  avoided.  The  reason 
is  obvious,  as  a  contract  to  be  binding,  must  receive  the 
assent  of  the  parties.  Not  mere  formal  assent,  but  the 
agreement  of  a  mind  capable  of  comprehending  the  nature 
of  the  transaction.  Where  one  of  the  parties  is  non  compos 
mentis  he  has  not  entered  into  the  agreement,  because  his 
mind  has  not  comprehended  the  nature  of  the  transaction, 
or  the  effect  of  his  act.  He  lacks  the  mental  capacity  to 
understandingly  give  his  assent  to  the  transaction,  while  in 
a  lucid  interval,  his  mind  acting  with  judgment,  has  under- 
stood the  force  and  effect  of  his  act.     *     *     * 

The  legal  presumption  is  that  all  persons  of  mature 
age  are  of  sane  memory,    But  after  inquest  found,  the  pre- 


145 

sumption  is  reversed  until  it  is  rebutted  by  evidence  that 
he  has  become  sane.  When  a  transaction  complained  of 
occurred  before  the  inquest  is  had,  the  proof  of  insanity 
devolves  upon  the  party  alleging  it,  but  it  is  otherwise  if  it 
took  place  afterwards.  In  this  case  the  conveyance  was 
executed  several  years  previous  to  the  inquest,  and  the  legal 
presumption  is  that  the  deed  is  valid  unless  the  proof  estab- 
lishes insanity  at  the  time  of  its  execution.     *     *     * 

It  appears  to  us  that  the  evidence,  on  the  part  of  the 
complainant,  fails  to  establish  the  fact  that  the  grantor  was 
insane  when  the  deed  was  executed.  It  may  create  doubt, 
but  that  is  insufficient  to  overcome  the  presumption  of 
sanity.  To  have  that  effect  the  evidence  must  preponderate, 
but  if  this  were  not  so,  appellant  introduced  eight  witnesses, 
acquaintances  of  Waggoner,  who  saw  and  conversed  with 
him,  but  at  no  time  discovered  any  appearance  of  insanity, 
of  which  complainants'  witnesses  speak.  Some  of  them 
purchased  of  him  land  or  other  property,  but  saw  nothing 
to  induce  them  to  believe  him  insane.  It  appears  that, 
immediately  previous  to  the  sale,  Waggoner  went,  on  two 
different  occasions,  to  the  houses  of  one  of  the  witnesses 
for  the  purpose  of  selling  the  land  to  appellant;  that  he 
then  appeared  to  be  rational.  Noys  testifies  that  he  pur- 
chased of  him  a  piece  of  land  in  April,  1851 ;  had  sold  him 
goods,  and  had  seen  nothing  strange  or  unusual  in  his  con- 
duct, and  believed  him  to  be  competent  to  trade  and  make 
contracts  at  the  time.  This  witness  says  "he  was  about  like 
the  other  Waggoners ;"  was  always  somewhat  singular  from 
the  time  he  first  knew  him. 

Decree  reversed  and  bill  dismissed. 


146 

Contractual  power  of  persons  lacking  mental  capacity 

GRIBBEN  v.  MAXWELL, 

34  Kan.  8  (1885). 

This  action  was  brought  by  Noah  Gribben  as  guardian 
of  Olive  Gribben,  a  lunatic,  against  Maxwell  to  set  aside  a 
conveyance  executed  by  Olive  Gribben. 

Horton,  C.  J. :  As  a  general  rule,  the  contract  of  a 
lunatic  is  void  per  se,  the  concurring  assent  of  two  minds 
is  wanting.  "They  who  have  no  mind  cannot  concur  in 
mind  with  one  another;  and  as  this  is  the  essence  of  a  con- 
tract, they  cannot  enter  into  a  contract."  Powell  v.  Powell, 
18  Kas.  371.  Notwithstanding  this  recognized  doctrine, 
decided  cases  are  far  from  being  uniform  on  the  subject  of 
liability  or  extent  of  liability  of  lunatics  for  their  contracts. 
*  *  *  We  think,  however,  the  weight  of  authority  £avors 
the  rule  that  where  a  purchase  of  real  estate  from  an  in- 
sane person  is  made,  and  a  deed  of  conveyance  is  obtained 
in  perfect  good  faith  before  the  inquisition  and  finding  of 
lunacy,  for  a  sufficient  consideration,  without  knowledge  of 
the  lunacy  and  no  advantage  is  taken  by  the  purchaser,  a 
consideration  received  by  the  lunatic  must  be  returned,  or 
offered  to  be  returned,  before  the  conveyance  can  be  set 
aside  at  the  suit  of  the  alleged  lunatic  or  one  who  repre- 
sents him. 

In  Corbett  v.  Smith,  7  Iowa  60,  the  court  states 
the  law  as  follows:  "In  the  next  place  a  distinction  is  to 
be  borne  in  mind  between  contracts  executed  and  contracts 
executory.  The  latter  the  courts  will  not  in  general  lend 
their  aid  to  execute  where  a  party  sought  to  be  affected  was 
at  the  time  incapable,  unless  it  may  be  for  necessaries.  If, 
on  the  other  hand,  the  incapacity  was  unknown,  no  advan- 
take  was  taken,  the  contract  has  been  executed,  and  the 
parties  cannot  be  put  in  statu  quo,  it  will  not  be  set  aside." 

In  Berrins  v.  McKenzie,  23  Iowa  333,  the  court  said : 
"But  with  respect  to  executed  contracts,  the  tendency  of 
modern  decision  is  to  hold  persons  of  unsound  mind  liable 


147 

in  cases  where  the  transaction  is,  in  the  ordinary  course 
of  business,  fair  and  reasonable,  and  the  mental  condition 
is  not  known  to  the  other  party,  and  the  parties  cannot  be 
put  in  statu  quo." 

In  Bank  v.  Moore,  78  Pa.  407,  a  lunatic  was  held 
liable  upon  a  note  discounted  by  him  at  the  bank.  Among 
other  things,  the  court  said:  "Many  insane  persons  drive 
as  thrifty  a  bargain  as  the  shrewdest  business  men  without 
betraying  in  manner  or  conversation  the  faintest  trace  of 
natural  derangement.  It  would  be  an  unreasonable  and 
unjust  rule  that  such  person  should  be  allowed  to  obtain  the 
property  of  innocent  parties  and  retain  both  the  property 
and  its  price." 

Applying  the  law  thus  declared,  to  the  case  at  bar,  the 
district  court  committed  no  error  in  overruling  the  demur- 
rer. It  appears  from  the  pleadings  that  the  conveyance 
was  executed  and  delivered  before  an  inquisition  and  find- 
ing of  lunacy;  that  no  offer  was  made  to  return  to  the 
purchaser  his  money  paid  for  the  conveyance  to  the  land ; 
and  the  answer  sets  forth  good  faith  on  the  part  of  the  pur- 
chaser; that  he  paid  a  fair  and  reasonable  price  for  the 
land ;  that  he  had  no  knowledge  or  information  of  the  lunacy 
of  the  ward  of  the  plaintiff;  but  that  there  was  nothing  in 
her  looks  or  conduct  at  the  time  to  indicate  that  she  was  of 
unsound  mind,  or  incapable  of  transacting  business;  but, 
on  the  contrary,  that  she  was  apparently  in  possession  of 
her  full  mental  faculties,  and  was  then,  and  had  been  for  a 
long  time  prior,  engaged  in  the  transaction  of  business  for 
herself.     *     *     * 

Judgment  affirmed. 


Editor's  Note. — In  most  cases  by  express  statutory  provision  the 
deeds  or  other  contracts  of  a  person  who  has  been  judicially  declared 
insane  and  placed  under  guardianship,  are  absolutely  void  and  not 
merely  voidable.     22  Cyc.  1198. 

Editor's  Note. — If  the  inquisition  overreaches  an  anterior  period 
of  time  during  which  the  person  is  found  to  have  been  insane  it  raises 
a  presumption  of  the  existence  of  insanity  during  that  period,  which 
presumption,  however,  is  not  conclusive  but  may  be  rebutted  by 
evidence  of  sanity  during  the  period  overreached  by  the  finding.  22 
Cyc.  1134. 


148 
Contractual  power  of  intoxicated  persons 

WRIGHT  v.  WALLER, 
127  Ala.  557  (1900). 

Appeal  from  judgment  for  defendant. 
McClellon,  C.  J. :  This  is  an  action  by  Wright  against 
Waller  on  a  contract  in  writing  signed  by  the  latter  to  pay 
rent.    Defendant  sought  to  avoid  the  contract  on  the  ground 
that  he  was  intoxicated  when  he  signed  it.    There  was  evi- 
dence tending  to  show  that  the  defendant  was  in  a  state  of 
"complete  drunkenness,  dethroning  reason,  when  he  signed 
the  paper ;"  and  on  the  other  hand,  there  was  evidence  tend- 
ing to  show  that  he  was  not  drunk  at  the  time.    There  was 
no  evidence  that  plaintiff  had  anything  to  do  with  bringing 
about  the  defendant's  intoxicated  condition,  if  he  was  in- 
toxicated,   nor    that    defendant's    mind    was    impaired    by 
habitual  drunkenness,  nor  that  the  contract  was  in  itself 
unconscionable  or  unfair.     On  this  state  of  the  case  the 
Court,  in  its  general  charge,  said :  "If  the  defendant  was  so 
much  under  the  influence  of  strong  drink,  or  intoxicating 
liquor,  that  his  reason  was  dethroned  to  an  extent  that  he 
could  not  give  that  attention  to  the  signing  of  the  note  that 
a  reasonably  prudent  man  would  be  able  to  give,  then  the 
note  would  be  void."    And  at  the  request  of  the  defendant 
the  Court  gave  the  following  charge:  "If  the  jury  find  from 
the  evidence  that  the  defendant  signed  the  note  under  such 
intoxication  that  he  could  not  give  proper  attention  to  it, 
then  the  note  is  not  evidence  in  the  case,  but  void."     To 
these  instructions  the  plaintiff  excepted  and  their  soundness 
vel  non  is  the  question  presented  on  this  appeal.     *     *     * 
The  following  are  some  of  the  statements  of  the  gov- 
erning principle  applicable  to  cases  like  this  found  in  the 
authorities :  "*    *    *     Intoxication  so  deep  as  to  take  away 
the  agreeing  mind,  in  other  words  to  disqualify  the  mind  to 
comprehend  the  subject  of  the  contract  and  its  nature  and 
possible  consequences,  impair  such  contract  if  made  while  it 
lasts  the  same  as  insanity,    But  mere  drunkenness,  or  being 


149 

a  drunkard,  or  simply  being  drunk  at  the  time,  where  the 
intoxication  does  not  extend  to  the  degree  thus  stated,  will 
not  impair  the  contract.  To  have  this  effect  it  must  render 
the  party  non  compos  mentis  for  the  occasion."  Bishop 
on  Contracts  980,  981.  "The  contract  of  a  drunken  person 
is  voidable  at  his  option,  if  it  can  be  shown  that  at  the  time 
of  making  the  contract  he  was  absolutely  incapable  of  un- 
derstanding what  he  was  doing."  Anson  on  Contracts,  150. 
*  *  *  "Intoxication  to  the  extent  only  that  the  party  did 
not  clearly  understand"  the  business  in  hand  "is  not  enough 
to  render  the  contract  voidable  or  void."  Henry  v.  Riten- 
our,  31  Ind.  136.  "It  is  also  urged  that  the  plaintiff  in 
error  is  not  bound  by  the  transaction  because  he  was  drunk 
at  the  time  he  signed  the  note.  We  think  the  evidence 
shows  that  he  was  at  the  time  drunk.  But  he  was  mani- 
festly not  so  drunk  but  he  knew  what  he  was  engaged  in 
at  the  time.  He,  on  the  trial,  testified  to  the  circumstances 
attending  the  transaction.  He  says  he  took  out  the  note 
and  threw  it  down,  and  told  them  to  take  it  and  that  they 
had  better  take  his  clothes.  Had  he  been  so  drunk  as  to 
render  the  assignment  void  he  could  not  have  known  or 
remembered  what  he  did.  To  render  the  transaction  void- 
able he  should  have  been  so  drunk  as  to  have  drowned 
reason,  memory  and  judgment,  and  impaired  the  mental 
faculties  to  an  extent  that  would  render  him  non  compos 
mentis  for  the  time  being."    Bates  v.  Voll,  72  111.  108. 

It  is  plain  that  the  rule  given  in  charge  to  the  jury  by 
the  trial  court  in  this  case  is  a  radical  departure  from  the 
established  and  true  rule  obtaining  in  all  such  cases.  *  *  * 
The  charge  given  at  the  defendant's  request  should,  there- 
fore, have  been  refused.  *  *  *  Many  perfectly  sane  and 
sober  men  could  not  bind  themselves  by  contract  at  all,  if 
the  rule  laid  down  there  is  a  sound  one.  The  law  does  not 
gauge  contractual  competency  by  the  standard  of  mental 
capacity  possessed  by  reasonably  prudent  men.  A  man  is 
not  incapacitated  because  of  intellectual  limitation  arising 
from  intoxication  or  what  not  which  prevent  him   from 


150 

giving  to  a  proposed  contract  all  the  consideration  that  a 
reasonably  prudent  man  would  be  able  to  give  it.     Indeed, 
that  test  has  no  relation  to  mental  capacity. 
Reversed  and  remanded. 


CONTRACTS  OF  CORPORATIONS 

SLATER  WOOLEN  CO.  v.  LAMB, 
143  Mass.  420  (1887). 

Appeal  from  judgment  for  plaintiff. 

Action  upon  contract  for  goods  sold  and  delivered. 

Field,  J. :  If  we  assume  that  the  truth  of  the  excep- 
tions has  been  established,  we  think  that  they  must  be  over- 
ruled. The  substance  of  the  defendant's  contentions  is, 
that  the  Slater  Woolen  Company,  having  been  incorporated 
"for  the  purpose  of  manufacturing  fabrics  of  wool  and 
worsted  or  of  a  mixture  thereof  with  other  textile  mate- 
rials," could  not,  by  and  in  the  name  of  persons  who  were 
in  fact  keeping  a  store  as  its  agents,  but  whose  agency  was 
undisclosed,  sell  groceries,  dry  goods,  and  other  similar 
articles  to  the  defendant,  who  was  not  employed  by  the 
company,  and  then  maintain  an  action  against  him  to  re- 
cover either  the  price  or  the  value  of  the  goods  sold. 

If  the  goods  were  the  property  of  the  plaintiff,  and 
were  sold  by  its  agents,  the  plaintiff  can  sue  as  an  undis- 
closed principal. 

It  was  said  of  Chester  Glass  Co.  v.  Dewey  (16  Mass. 
94),  in  Davis  v.  Old  Colony  Railroad  (131  Mass.  258,  273), 
that  "The  leading  reason  assigned  was,  'the  legislature  did 
not  intend  to  prohibit  the  supply  of  goods  to  those  em- 


Editor's  Note. — A  contract  entered  into  by  a  person  who  is  so 
drunk  as  not  to  know  what  he  is  doing  is  voidable  only  and  not  void 
and  may,  therefore,  become  ratified  bv  him  when  he  becomes  sober. 
Carpenter  v.  Roger,  61  Mich.  384  (1886). 


151 

ployed  in  the  manufactory,'  in  other  words,  the  contract 
sued  on  was  not  ultra  vires.  That  reason  being  decisive  of 
the  case,  the  further  suggestion  in  the  opinion,  'Besides,  the 
defendant  cannot  refuse  payment  on  this  ground;  but  the 
legislature  may  enforce  the  prohibition,  by  causing  the 
charter  to  be  revoked,  when  they  shall  determine  that  it 
has  been  abused,'  was,  as  has  been  since  pointed  out,  wholly 
obiter  dictum/*  But  the  weight  of  authority,  we  think, 
supports  the  last  reason  given  in  its  application  to  the  facts 
of  the  present  case.  There  is  a  distinction  between  a  cor- 
poration making  a  contract  in  excess  of  its  powers,  and 
making  a  contract  which  it  is  prohibited  by  statute  from 
making,  or  which  is  against  public  policy  or  sound  morals ; 
and  there  is  also  a  distinction  between  suing  for  the  breach 
of  an  executory  contract  and  suing  to  recover  the  value  of 
property  which  has  been  received  and  retained  by  the 
defendant  under  a  contract  executed  on  the  part  of  the 
plaintiff. 

If  it  be  assumed,  in  favor  of  the  defendant,  that  the 
contracts  of  sale  in  the  case  at  bar  were  ultra  vires  of  the 
corporation,  they  were  not  contracts  which  were  prohib- 
ited, or  contracts  which  were  void  as  against  public  policy 
or  good  morals ;  the  defect  in  them  is,  that  the  corporation 
exceeded  its  powers  in  making  them.  The  defendant,  under 
these  contracts,  has  received  the  goods,  and  retained  and 
used  them.  Either  the  corporation  must  lose  the  value  of 
its  property,  or  the  defendant  must  pay  for  it;  in  such  an 
alternative,  courts  have  held,  on  one  ground  or  another,  that 
an  action  can  be  maintained  when  the  sole  defect  is  a  want 
of  authority  on  the  part  of  the  corporation  to  make  the 
contract.  We  think  that  the  corporation  can  maintain  an 
action  of  contract  against  the  defendant  to  recover  the  value 
of  the  goods.  The  defendant  is  not  permitted  to  set  up 
this  want  of  authority  as  a  defense ;  and  as  the  form  of  the 
transaction  was  that  of  contract,  such  should  be  the  form 
of  the  action. 


152 

We  are  not  required  to  determine  whether  an  action 
can  be  maintained  to  recover  the  price,  as  distinguished 
from  the  value  of  the  goods,  as  no  exception  has  been  taken 
to  the  measure  of  damages. 

Exceptions  overruled. 


CONTRACTS   OF  MARRIED   WOMEN 
WELLS  v.  CAYWOOD, 

3  Col.  487  (1877). 

This  was  an  action  of  ejectment  to  determine  the  title 
to  certain  real  estate.  The  question  for  decision  is  whether 
or  not  a  conveyance  by  a  husband  to  his  wife  confers  a 
good  title  upon  the  wife,  and  generally  concerning  the  con- 
tractual rights  of  married  women. 

Thatcher,  C.  J. :  This  brings  us  to  the  consideration 
of  the  question  of  the  relation  of  husband  and  wife  under  the 
laws  of  this  State,  with  respect  to  the  independent  acqui- 
sition, enjoyment,  and  disposition  of  property.  The  general 
tendency  of  legislation  in  this  country  has  been  to  make 
husband  and  wife  equal  in  all  respects  in  the  eye  of  the 
law,  to  secure  to  each,  untrammeled  by  the  other,  the  full 
and  free  enjoyment  of  his  or  her  proprietary  rights,  and  to 
confer  upon  each  the  absolute  dominion  over  the  property 
owned  by  them  respectively.  The  legislation  of  our  own 
State  upon  this  subject,  although  yet  somewhat  crude  and 
imperfect,  has  doubtless  been  animated  by  a  growing  sense 


Editor's  Note. — A  contract  ultra  vires  being  unlawful  and  void, 
not  because  it  is  in  itself  immoral,  but  because  the  corporation,  by 
the  law  of  its  creation,  is  incapable  of  making  it,  the  courts,  while 
refusing  to  maintain  any  action  upon  the  unlawful  contract,  have 
always  striven  to  do  justice  between  the  parties,  so  far  as  could  be 
done  consistently  with  adherence  to  law,  by  permitting  property  or 
money  parted  with  on  faith  of  the  unlawful  contract,  to  be  recov- 
ered back  or  compensation  to  be  made  for  it.  Central  Transporta- 
tion Co.  v.  Pullman's  Car  Co.,  139  U.  S.  24,  60  (1890). 


153 

of  the  unjustly  subordinate  position  assigned  to  married 
women  by  the  common  law,  whose  asperities  are  gradually 
softening  and  yielding  to  the  demands  of  this  enlightened 
and  progressive  age.  The  benignant  principles  of  the  civil 
law  are  being  slowly  but  surely  grafted  into  our  system  of 
jurisprudence.  "In  the  civil  law,"  says  Sir  William  Black- 
stone  (1  Blackstone's  Com.  (Cooley)  444),  "husband  and 
wife  are  considered  as  two  distinct  persons,  and  may  have 
separate  estates,  contracts,  debts  and  injuries,  and  there- 
fore, in  our  ecclesiastical  courts  a  woman  may  sue  and  be 
sued  without  her  husband." 

The  courts — which  have  ever  been  conservative,  and 
which  have  always  been  inclined  to  check,  with  an  unsparing 
hand,  any  attempt  at  departure  from  the  principles  of  the 
body  of  our  law,  which  were  borrowed  from  England — 
in  the  States  which  were  the  first  to  pass  enactments  for 
the  enlargement  of  the  rights  of  married  women,  regard- 
ing such  enactments,  as  a  violent  innovation  upon  the  com- 
mon law,  construed  them  in  a  spirit  so  narrow  and  illiberal 
as  to  almost  entirely  defeat  the  intention  of  the  law-makers ; 
but  generally  with  a  promptness  that  left  little  room  for 
doubt,  a  succeeding  legislature  would  reassert,  in  a  more 
unequivocal  form,  the  same  principles  which  the  courts 
had  before  almost  expounded  out  of  existence.  To  under- 
stand the  marked  changes  which  our  own  legislation  has 
wrought  in  this  respect,  it  is  necessary  that  we  should 
consider  some  of  the  disabling  incidents  and  burdens  attend- 
ant upon  coverture  at  common  law.  At  common  law  the 
husband  and  wife  are  one  person,  and  as  to  every  contract 
there  must  be  two  parties,  it  followed  that  they  could  enter 
into  no  contract  with  each  other.  "The  very  being  or  legal 
existence  of  the  woman  is  suspended  during  the  marriage, 
or  at  least  is  incorporated  and  consolidated  into  that  of  the 
husband,  under  whose  wing,  protection  and  cover  she  per- 
forms everything."  "Upon  the  principle  of  an  union  of 
person  in  husband  and  wife  depend  almost  all  the  legal 


rights,  duties  and  disabilities  that  either  of  them  acquire  by 
marriage."     1  Cooley's  Blackstone  442. 

All  the  personal  estate,  as  money,  goods,  cattle,  house- 
hold furniture,  etc.,  that  were  the  property  and  in  possession 
of  the  wife  at  the  time  of  the  marriage,  are  actually  vested 
in  the  husband,  so  that  of  these  he  might  make  any  disposi- 
tion in  his  lifetime,  without  her  consent,  or  might  by  will 
devise  them,  and  they  would,  without  any  such  disposition, 
go  to  the  executors  or  administrators  of  the  husband  and 
not  to  the  wife,  though  she  survive  him.  Debts  due  to  the 
wife  are  so  far  vested  in  the  husband  that  he  may,  by  suit, 
reduce  them  to  possession.  2  Bacon's  Abridgment  21.  The 
rents  and  profits  of  her  land  during  coverture  belong  to  the 
husband. 

The  law  wrested  from  the  wife  both  her  personal  estate 
and  the  profits  of  her  realty,  however  much  it  might  be 
against  her  will,  and  made  them  liable  for  his  debts. 

An  improvident  husband  had  it  in  his  power  to  im- 
poverish the  wife  by  dissipating  her  personal  estate,  and 
the  profits  of  her  realty  over  which  she,  under  the  law,  by 
reason  of  the  coverture,  had  no  control. 

The  wife  in  Colorado  is  the  wife  under  our  statutes, 
and  not  the  wife  at  common  law,  and  by  our  statutes  must 
her  rights  be  determined,  the  common  law  affecting  her 
rights,  as  we  shall  presently  see,  having  been  swept  away. 

By  our  laws  it  was  declared  that  the  property,  real  and 
personal,  which  any  woman  may  own  at  the  time  of  her 
marriage,  and  the  rents,  issues,  profits  and  proceeds  thereof, 
and  any  real,  personal  or  mixed  property  that  shall  come 
to  her  by  descent,  devise  or  bequest,  or  be  the  gift  of  any 
person  except  her  husband,  shall  remain  her  sole  and  sepa- 
rate property  notwithstanding  her  marriage,  and  not  be 
subject  to  the  disposal  of  her  husband  or  liable  for  his 
debts.    R.  S.  1868,  p.  454. 

The  legislature,  however,  being  reluctant  to  allow  a 
married  woman  the  absolute  dominion  over  her  own  real 
property,  further  provided  that  she  could  only  convey  her 


155 

estate  in  lands  by  uniting  with  her  husband  in  any  con- 
veyance thereof,  and  acknowledging  the  same  separate  and 
apart  from  her  husband.     R.  S.  1868,  p.  Ill,  Sec.  17. 

It  was  not  to  be  expected  that  our  laws  would  long  be 
permitted  to  remain  in  this  anomalous  and  incongruous 
condition,  declaring  in  one  section  that  the  wife's  real 
property  should  remain  her  separate  estate,  not  subject  to 
disposal  by  her  husband,  and  in  another  that  she  could  not 
convey  it  without  the  consent  of  her  husband,  which  is 
necessarily  implied  by  his  uniting  in  a  deed  with  her. 

By  "an  act  concerning  married  women,"  approved  Feb- 
ruary 12,  1874,  it  is  provided  in  Section  1,  that  any  woman, 
while  married,  may  bargain,  sell  and  convey  real  and  per- 
sonal property,  and  enter  into  any  contract  in  reference  to 
the  same,  as  if  she  were  sole.  Section  2  provides  that  she 
may  sue  and  be  sued,  in  all  matters,  the  same  as  if  she  were 
sole.  Section  3  provides  that  she  may  contract  debts  in  her 
own  name,  and  upon  her  own  credit,  and  may  execute  prom- 
issory notes,  bonds  and  bills  of  exchange,  and  other  instru- 
ments in  writing,  and  may  enter  into  any  contract  the  same 
as  if  she  were  sole.  Section  4  repeals  Section  17  of  Chapter 
17  of  the  Revised  Statutes,  which  required  the  husband  to 
unite  with  the  wife  in  conveying  her  separate  estate.  This 
is,  essentially,  an  enabling  statute,  and  as  such  must  be  lib- 
erally construed  to  effectuate  the  purpose  of  its  enactment. 
It  confers,  in  terms,  enlarged  rights  and  powers  upon  mar- 
ried women.  In  contemplation  of  this  statute,  whatever 
may  be  the  actual  fact,  a  feme  covert  is  no  longer  sub 
potestate  viri  in  respect  to  the  acquisition,  enjoyment  and 
disposition  of  real  and  personal  property.  This  statute 
asserts  her  individuality  and  emancipates  her,  in  the  respects 
within  its  purview,  from  the  condition  of  thraldom  in  which 
she  was  placed  by  the  common  law.  The  legal,  theoretical 
unity  of  husband  and  wife  is  severed  so  far  as  is  necessary 
to  carry  out  the  declared  will  of  the  law-making  power. 
With  her  own  property  she,  as  any  other  individual  who  is 
sni  juris,  can  do  what  she  will,  without  reference  to  any 


156 

restraints  or  disabilities  of  coverture.  Whatever  incidents, 
privileges  and  profits  attach  to  the  dominion  of  property, 
when  exercised  by  others,  attach  to  it  in  her  hands.  Before 
this  statute  her  right  to  convey  was  not  untrammeled,  but 
now  it  is  absolute  without  any  qualification  or  limitation  as 
to  who  shall  be  the  grantee.  Husband  and  wife  are  made 
strangers  to  each  other's  estates.  There  are  no  words  in 
the  act  that  prohibit  her  from  making  a  conveyance  directly 
to  her  husband,  and  it  is  not  within  the  province  of  the 
court  to  supply  them.     *     *     * 

The  removal  in  respect  to  the  wife,  of  a  disability  that 
is  mutual  and  springing  from  the  same  source  removes  it 
also  as  to  the  husband.  The  reason,  which  is  the  spirit 
and  soul  of  the  law,  cannot  apply  to  the  husband  as  it  no 
longer  applies  to  the  wife.  If  she  may  convey  to  the  hus- 
band, the  husband  may  convey  to  the  wife.  Allen  v.  Hooper, 
50  Me.  371;  Stone  v.  Gazzam,  46  Ala.  269;  Burdeno  v. 
Ampeise,  14  Mich.  91 ;  Patten  v.  Patten,  75  111.  443. 

Editor's  Note. — The  law  concerning  the  contractual  powers  of 
married  women  differs  considerably  in  the  different  states.  The 
statutes  of  the  particular  state  should  be  studied. 


Chapter  IV 
REALITY  OF  CONSENT 


MISTAKE 

Mutual  mistake  as  to  subject  matter 

ABRAM  RUPLEY  ET  AL.  v.  JOHN  F.  DAGGETT, 

74  111.  351  (1874). 

Appeal  from  judgment  for  plaintiff. 

This  was  an  action  of  replevin,  brought  by  John  F. 
Daggett  against  Abram  Rupley  and  Jacob  Rupley,  to  recover 
a  mare  which  the  defendants  claimed  they  had  bought  of 
the  plaintiff. 

It  appears  that  at  the  first  conversation  about  the  sale 
of  the  mare,  Rupley  asked  the  plaintiff  his  price,  the  plain- 
tiff swearing  that  he  replied  $165,  while  the  defendant 
testified  that  he  said  $65,  and  that  he  did  not  understand 
him  to  say  $165.  In  the  second  conversation  Rupley  says 
he  told  Daggett,  that  if  the  mare  was  what  he  represented 
her  to  be,  they  would  give  $65,  and  Daggett  said  he  would 
take  him  down  next  morning  to  see  her.  Daggett  denied 
this,  and  says  that  Rupley  said  to  him,  "Did  I  understand 
you  sixty-five?"  Daggett  states  that  he  supposed  Rupley 
referred  to  the  fraction  of  the  $100,  and  meant  sixty-five 
as  coupled  with  the  price  named  at  the  previous  interview. 
He  answered,  "Yes,  sixty-five."  Both  parties,  from  this, 
supposed  the  price  was  fixed.  Rupley  supposing  it  was  $65, 
and  Daggett  supposing  it  was  $165,  and  the  only  thing 
remaining  to  be  done,  as  each  thought,  was  for  Rupley  to 
see  the  mare  and  decide  whether  she  suited  him.  The  next 
day  Rupley  came,  saw  the  mare  and  took  her  home  with 
him.  The  plaintiff  recovered  in  the  court  below,  and  the 
defendants  appealed. 

(157) 


158 

Scott,  J.,  delivered  the  opinion  of  the  Court. 

It  is  very  clear,  from  the  evidence  in  this  case,  there 
was  no  sale  of  the  property  understandingly  made.  Appel- 
lee supposed  he  was  selling  for  $165,  and  it  may  be  appel- 
lant was  equally  honest  in  the  belief  that  he  was  buying  at 
the  price  of  $65.  There  is,  however,  some  evidence  tend- 
ing to  show  that  appellant,  Rupley,  did  not  act  with  entire 
good  faith.  He  was  told,  before  he  removed  the  mare  from 
appellee's  farm,  there  must  be  some  mistake  as  to  the  price 
he  was  to  pay  for  her.  There  is  no  dispute  this  information 
was  given  him.  He  insisted,  however,  the  price  was  $65, 
and  expressed  his  belief  he  would  keep  her  if  there  was  a 
mistake.  On  his  way  home  with  the  mare  in  his  possession 
he  met  appellant,  but  never  intimated  to  him  he  had  been  told 
there  might  be  a  misunderstanding  as  to  the  price  he  was  to 
pay  for  her.  This  he  ought  to  have  done,  so  that  if  there 
had  been  a  misunderstanding  between  them  it  could  be 
corrected  at  once.  If  the  price  was  to  be  $165,  he  had  never 
agreed  to  pay  that  sum,  and  was  under  no  sort  of  obliga- 
tion to  keep  the  property  at  that  price.  It  was  his  privi- 
lege to  return  it.  On  the  contrary,  appellee  had  never 
agreed  to  sell  for  $65,  and  could  not  be  compelled  to  part 
with  his  property  for  a  less  sum  than  he  chose  to  ask.  It 
is  according  to  natural  justice,  where  there  is  a  mutual  mis- 
take in  regard  to  the  price  of  an  article  of  property,  there 
is  no  sale,  and  neither  party  is  bound.  There  has  been  no 
meeting  of  the  minds  of  the  contracting  parties,  and  hence 
there  can  be  no  sale.  This  principle  is  so  elementary  it 
needs  no  citation  of  authorities  in  its  support.  Any  other 
rule  would  work  injustice  and  might  compel  a  person  to 
part  with  his  property  without  his  consent,  or  to  take  and 
pay  for  property  at  a  price  he  had  never  contracted  to  pay. 

Xo  material  error  appearing  in  the  record,  the  judg- 
ment must  be  affirmed. 

Judgment  affirmed. 


159 

Mutual  mistake — Reformation  of  deed 

EZELL  v.  PEYTON  ET  AL.,  APPELLANTS, 

134  Mo.  484  (1896). 

Appeal  from  judgment  for  plaintiff. 

Burgess,  J.:  This  is  a  suit  in  equity  to  reform  two 
deeds,  one  dated  October  16,  1889,  and  executed  by  E.  N. 
Peyton  and  wife  to  John  L.  Harrison  and  John  Hamilton; 
the  other  dated  November  27,  1889,  executed  by  said  Har- 
rison and  Hamilton  and  their  wives  to  plaintiff,  both  deeds 
conveying  lot  3  and  the  west  half  of  lot  2  in  block  29,  in 
Freeman,  Cass  County,  Missouri.     *     *     * 

Hamilton  testified,  that  during  his  negotiations  for  the 
property  he  and  Peyton  were  on  the  west  fence,  and  he 
said  to  Peyton,  "Ed,  I  want  to  know  how  much  land  there 
is  here,  how  much  is  it?"  and  Peyton  said,  "There  is  a  lot 
and  a  half  of  a  lot";  and  Peyton  further  said,  "It  is  all 
inside  of  this  fence,  inclosed  in  this  fence;  what  you  see 
in  here  embraces  that";  and,  Hamilton  testified,  "I  took 
it  for  granted  that  that  fence  was  around  a  lot  and  a  half 
of  ground."     *     *     * 

It  does  not  appear  that  Peyton  knew  where  the  lines 
between  the  lots  were,  but  that  he  sold  to  Hamilton  and 
Harrison  all  the  land  inclosed  by  the  fence,  and  that  they 
so  bought  not  only  seems  clear  from  the  evidence  of  Hamil- 
ton, but  is  shown  by  all  the  evidence  in  the  case.  And  it 
makes  no  difference  so  far  as  their  rights,  and  plaintiff  who 
claims  under  them,  are  concerned,  that  the  deeds  do  not 
embrace  the  land  actually  sold. 

Hamilton  and  Harrison  did  not  buy  the  land  as  de- 
scribed in  the  deed  to  them,  but  bought  the  land  that  was 
inclosed  by  the  fence  which  they  and  Peyton  understood  to 
be  correctly  described  by  the  deed  from  himself  and  wife  to 
them,  when  it  was  not.  It  was  a  mutual  mistake  between 
the  parties  to  the  deed  from  Peyton  to  Harrison  and  Hamil- 
ton in  that  the  land  in  question  is  not  a  part  of  lot  3  and 
the  west  half  of  lot  2,  and  the  same  mistake  entered  into 


160 

the  sale  of  the  lot  by  Harrison  and  Hamilton  to  plaintiff. 
The  grantees  in  both  deeds  had  the  right  to  rely  upon  the 
statements  and  representations  of  their  respective  grantors, 
with  respect  of  the  boundaries  of  the  land  purchased  by 
them.  Even  though  the  deed  or  deeds  to  Peyton  for  the  land 
may  have  been  on  record,  they  furnished  no  information 
as  to  the  exact  location  of  its  boundaries,  and  the  purchasers 
were  not  in  fault  in  relying  upon  his  statements  and  repre- 
sentations with  respect  thereto,  they  having  no  reason  to 
believe  the  same  to  be  untrue. 

In  Butler  v.  Barnes,  60  Conn.  170,  it  was  held  that  a 
mutual  mistake  of  grantor  and  grantee  in  supposing  land 
staked  and  pointed  out  to  the  grantee  by  the  grantor  be- 
longed to  the  latter,  while  in  fact  it  included  a  strip  belong- 
ing to  an  adjoining  owner,  whose  land  was  made  a  boundary 
by  a  description  of  the  premises  in  the  deed,  entitled  the 
grantee  to  have  the  deed  reformed. 

In  the  case  in  hand  the  land  was  inclosed  by  a  fence 
and  presents  a  much  stronger  case  for  equitable  relief  than 
that  case  did. 

It  is  immaterial  whether  the  error  in  the  description 
of  the  land  actually  pointed  out  and  sold  was  the  result  of 
intentional  or  unintentional  misstatement  on  the  part  of 
Peyton,  as  equity  will  afford  relief  as  well  in  the  one  case 
as  in  the  other.  Smith  v.  Jordan,  13  Minn.  270;  Botsford 
v.  McLean,  45  Barb.  478. 

Our  conclusion  is  that  the  evidence  clearly  shows  that 
there  was  a  mutual  mistake  between  Peyton  and  Harrison 
and  Hamilton  in  that  the  description  of  the  land  as  con- 
tained in  the  deed  by  him  to  them  does  not  embrace  all  the 
land  pointed  out,  and  represented  by  him  as  being  inclosed 
by  the  fence,  and  part  of  lot  3  and  the  west  half  of  lot  2.  and 
that  the  same  mutual  mistake  existed  in  the  sale  and  deed 
from  Harrison  and  Hamilton  to  plaintiff,  and  that  he  is 
entitled  to  the  relief  sought.     The  judgment  is  affirmed. 


161 

Mistake  of  one  party  as  to  identity  of  other  party 

SAMUEL  A.  STODDARD  AND  ANOTHER  v. 
JOSEPH  HAM, 

129  Mass.  383  (1880). 

Appeal  from  judgment  for  plaintiffs. 

Tort  for  the  conversion  of  a  quantity  of  bricks.  An- 
swer, a  general  denial.  Trial  in  the  Superior  Court,  without 
a  jury  before  Pitman,  J.,  who  reported  the  case  for  the 
determination  of  this  court  upon  the  following  facts  found 
by  him. 

The  plaintiffs  were  manufacturers  of  and  dealers  in 
bricks,  at  Bangor,  Me.  The  bricks  in  question  were  there 
purchased  of  the  plaintiffs  by  Charles  E.  Leonard,  who  did 
a  commission  business  in  that  city,  but  sometimes  bought 
on  his  own  account.  The  plaintiffs  supposed  they  were  sell- 
ing these  bricks  to  the  defendant  through  Leonard  as  his 
agent;  and  they  were  sold  on  the  credit  of  the  defendant 
solely  and  would  not  have  been  sold  on  the  personal  credit 
of  Leonard ;  but  Leonard  was  not  the  agent  of  the  defend- 
ant in  this  purchase,  and  had  no  authority  to  bind  him. 
Leonard  was  not  guilty  of  any  false  representations  as  to 
agency;  and  it  was  a  case  of  error  and  mistake  on  the  part 
of  the  plaintiffs  as  to  the  principal  with  whom  they  were 
dealing. 

The  bricks  were  bought  upon  short  credit  and  were 
immediately  sold  by  Leonard  to  the  defendant,  at  a  fixed 
price  delivered  in  Boston,  and  were,  in  fact,  bought  with 
a  view  to  such  sale.  The  bricks  remained  in  the  plaintiffs' 
yard  and  possession  until  after  the  sale  by  Leonard  to  the 
defendant,  and  were  afterwards  delivered  by  the  plaintiffs 
at  a  wharf  in  Bangor,  as  directed  by  Leonard,  and  by  him 
shipped  to  the  defendant,  Leonard  taking  the  bills  of  lading 
in  his  own  name.  Leonard  sold  other  bricks  to  the  defend- 
ant, at  or  about  the  same  time,  and  drew  drafts  against  the 
aggregate  cargoes,  which  were  accepted  and  paid  by  the 
defendant,  who  also  paid  the  freight  on  account  of  Leonard. 


162 

From  the  proceeds,  certain  payments  were  made  by  Leon- 
ard to  the  plaintiffs,  who  supposed  that  they  were  made  on 
the  defendant's  account,  and  they  were  credited  to  the  latter. 
After  the  bricks  were  all  delivered,  Leonard  failed  in  busi- 
ness, and  no  other  payments  were  made.  Leonard  was 
largely  indebted  to  the  defendant,  and  he  offset  the  claim 
of  Leonard  for  the  balance  due  him  on  the  bricks  by  this 
antecedent  indebtedness.  After  Leonard  stopped  payment, 
the  plaintiffs  made  due  demand  on  the  defendant  for  the 
bricks,  contending  that  they  had  never  parted  with  the 
property  in  them,  if  the  defendant  repudiated  the  agency  of 
Leonard  ;  and  offered  to  repay  the  defendant  for  all  advances 
and  expenses  incurred  by  him ;  but  the  defendant  refused 
to  deliver  them,  and  claimed  to  hold  by  purchase  from 
Leonard.  At  the  time  of  the  demand,  the  defendant  had 
on  hand  some  of  the  bricks  which  came  from  the  plaintiffs' 
yard ;  the  others  had  been  sold  and  delivered  by  the  de- 
fendant as  they  arrived. 

Upon  these  facts,  the  judge  ruled,  as  matter  of  law, 
that  the  plaintiffs  could  not  recover ;  and  ordered  judgment 
for  the  defendant.  If  the  ruling  was  right,  judgment  was 
to  be  entered  for  the  defendant ;  otherwise,  the  case  to  stand 
for  a  new  trial. 

Colt,  J. :  This  case  was  tried  without  a  jury,  and  there 
is  no  reason  to  doubt  that,  upon  the  facts  found  by  the  judge, 
it  was  correctly  ruled  that  the  plaintiffs  could  not  recover 
in  tort  for  the  conversion  of  the  property  in  dispute. 

It  is  not  enough  to  give  the  plaintiffs  a  right  to  recover, 
that  they  supposed  they  were  selling  bricks  to  the  defend- 
ant, through  Leonard,  his  agent,  and  that  they  would  not 
have  sold  them  to  Leonard  on  his  sole  credit.  The  judge 
found  that  they  were  in  fact  sold  to  Leonard.  There  was 
no  fraud,  no  false  representation  of  agency,  or  pretense  on 
the  part  of  Leonard  that  he  was  buying  for  any  one  else. 
He  was  a  commission  merchant,  who  was  in  the  habit  of 
purchasing  goods  on  his  own  account,  and  who  honestly 
bought  the  bricks  for  himself  and  sold  them  to  the  defendant 


163 

as  his  own.  It  was  not  a  case  of  mistaken  identity.  The 
plaintiffs  knew  that  they  were  dealing  with  Leonard;  they 
did  not  mistake  him  for  the  defendant;  nothing  was  said 
as  to  any  other  party  to  the  sale.  The  conclusion  is  un- 
avoidable that  the  contract  was  with  him.  The  difficulty  is 
that  the  plaintiffs,  if  they  had  any  other  intention,  neglected 
then  to  disclose  it.  It  was  a  mistake  on  one  side,  of  which 
the  other  had  no  knowledge  or  suspicion,  and  which  con- 
sisted solely  in  the  unauthorized  assumption  that  Leonard 
was  acting  as  agent  for  a  third  person,  and  not  for  himself. 

It  is  elementary  in  the  law  governing  contracts  of  sale 
and  all  other  contracts,  that  the  agreement  is  to  be  ascer- 
tained exclusively  from  the  conduct  of  the  parties  and  the 
language  used  when  it  is  made,  as  applied  to  the  subject 
matter  and  to  known  usages.  The  assent  must  be  mutual, 
and  the  union  of  minds  is  ascertained  by  some  medium  of 
communication.  A  proposal  is  made  by  one  party  and  is 
acceded  to  by  the  other  in  some  kind  of  language  mutually 
intelligible,  and  this  is  mutual  assent.  Met.  Con.  14.  A 
party  cannot  escape  the  natural  and  reasonable  interpreta- 
tion which  must  be  put  on  what  he  says  and  does,  by  show- 
ing that  his  words  were  used  and  his  acts  done  with  a  dif- 
ferent and  undisclosed  intention.  Foster  v.  Ropes,  111 
Mass.  10,  16.  It  is  not  the  secret  purpose,  but  the  ex- 
pressed intention,  which  must  govern,  in  the  absence  of 
fraud  and  mutual  mistake.  A  party  is  estopped  to  deny  that 
the  intention  communicated  to  the  other  side  was  not  his 
real  intention.  To  hold  otherwise  would  be  to  put  it  in  the 
power  of  the  vendor  in  every  case  to  defeat  the  title  of  the 
vendee  and  of  those  holding  under  him,  by  proving  that  he 
intended  to  sell  to  another  person,  and  so  there  was  no 
mutual  assent  to  the  contract. 

In  Boston  Ice  Co.  v.  Potter,  123  Mass.  28,  cited  by 
the  plaintiffs,  there  was  no  privity  of  contract  established 
between  the  plaintiff  and  the  defendant.  There  was  no 
evidence  afforded  in  the  conduct  and  dealings  of  the  parties, 
that  the  defendant  assented  to  any  contract  whatever  with 


164 

the  plaintiff.  A  stranger  attempted  to  perform  the  contract 
of  another  party  with  the  defendant. 

In  Hardman  v.  Booth,  1  H.  &  C.  803,  there  was  abun- 
dant evidence  that  the  contract  was  with  another  party,  to 
whom  the  goods  were  sent,  and  not  with  the  person  who 
obtained  possession  of  them  and  sold  them  to  the  defendant. 
In  Mitchell  v.  Lapage,  Holt  N.  P.  253,  the  goods  were 
expressly  bought  of  a  firm,  which,  without  the  knowledge 
of  the  broker,  had  been  dissolved  by  the  witdhrawal  of  two 
of  its  members. 

We  are  referred  to  no  case  which  supports  the  claim 
here  made  by  the  plaintiffs. 

Judgment  for  the  defendant. 

Mistake  of  one  party  as  to  terms  of  written  contract 

SILAS  R.  HILL,  RESPONDENT,  v.  THE  SYRACUSE, 
•     BINGHAMTON  AND  NEW  YORK  R.  R.  CO. 

73  N.  Y.  351   (1878). 

Appeal  from  judgment  for  plaintiff. 

This  action  was  brought  to  recover  damages  for  the 
alleged  non-performance  of  a  contract,  entered  into  by  de- 
fendant as  a  common  carrier.  The  plaintiff  delivered  a 
quantity  of  wool  at  defendant's  depot  at  Whitney's  Point, 
to  be  carried  to  New  York  City.  Plaintiff  gave  evidence 
tending  to  show  that  before  the  delivery  of  the  wool  he 
made  a  parol  agreement  with  the  person  in  charge  of 
defendant's  depot  that  the  wool  should  be  shipped  by 
defendant  within  two  weeks,  and  that  upon  the  faith  of 
such  agreement  the  delivery  was  made.  This  evidence  was 
objected  to  upon  the  ground  that  the  agreement  between  the 
parties  was  in  writing,  and  that  oral  evidence,  changing  or 
modifying  the  same,  was  incompetent.  The  objection  was 
overruled  and  defendant's  counsel  duly  excepted.     It  ap- 


Editor's  Note. — A  mistake  of  one  party  unknown  to  the  other  is 
not  generally  a  ground  for  avoiding  a  contract.  An  important  excep- 
tion exists  where  one  party  is  under  a  mistake  as  to  the  substance  of 
the  contract  and  the  other  party  knows  it.  In  such  cases  the  contract 
is  void.  If,  however,  the  mistake  of  the  one  party  is  only  in  opinion 
as  to  the  value  or  quality  of  the  subject  matter,  or  as  to  his  expectations 
or  motives,  the  knowledge  of  the  other  is  immaterial.  Thus  a  seller 
of  property  need  not  disclose  matters  affecting  its  value,  nor  a  buyer, 
matters  within  his  knowledge  enhancing  its  value.    9  Cyc.  394  et  seq. 


165 

peared  that  afterwards,  and  on  the  same  day,  as  plaintiff  was 
about  to  start  for  his  home,  he  received  from  defendant's 
agent,  at  the  depot,  receipts  or  bills  of  lading  for  the  wool, 
but  examined  them  no  further  than  to  see  that  the  weights 
were  correct,  and  then  put  them  in  his  pocket,  and  did  not 
notice  the  conditions  therein  until  next  day.  By  such  con- 
ditions the  defendant  was  exempted  from  liability  arising 
from  any  delay.  The  wool  was  not  shipped  until  nearly  two 
months  after.  In  the  meantime,  the  value  of  the  wool  in 
market  had  fallen  off  nearly  30  cents  per  pound. 

Church,  C.  J. :  The  decision  of  this  court  in  the  recent 
case  of  Ins.  Co.  v.  R.  R.  Co.  (72  N.  Y.  90)  is  decisive 
in  this  case  that  the  receipt  of  bill  of  lading  delivered  to 
the  plaintiff  is  to  be  regarded  as  a  contract  between  the 
parties,  instead  of  the  parol  agreement  alleged  to  have  been 
made  previously,  but  on  the  same  day,  between  the  plain- 
tiff and  the  person  in  charge  representing  the  agent.  The 
decision  in  Boswick  v.  R.  R.  (45  N.  Y.  712)  was  not  in- 
tended to  impair  the  general  and  well-settled  rule  that 
when  goods  are  delivered  to  a  carrier  for  transportation, 
and  a  bill  of  lading  or  receipt  is  delivered  to  the  shipper, 
he  is  chargeable  with  notice  of  its  contents  and  is  bound 
by  its  terms,  and  that  prior  parol  negotiations  cannot  be 
resorted  to  to  vary  them.  In  that  case  the  property  had 
been  shipped  by  the  carrier  before  the  bill  of  lading  was 
delivered,  and  was  beyond  the  reach  or  control  of  the  ship- 
per. This  court  held  that  the  carrier  having  shipped  the 
property  after  the  parol  contract  and  before  delivery  of  the 
bill  of  lading,  was  bound  by  the  parol  contract,  and  could 
not  afterwards  change  it  without  the  express  consent  of 
the  shipper ;  but  to  apply  the  rule  in  a  case  like  this  would 
destroy  the  protection  which  the  delivery  and  acceptance 
of  a  bill  of  lading  affords.  The  delivery  of  the  property 
and  bill  of  lading  are  generally  regarded  as  simultaneous 
acts,  although  the  delivery  of  the  property  necessarily  pre- 
cedes the  making  and  delivery  of  the  receipt  or  bill  of 
lading,  and  in  most  cases  some  parol  negotiations  precede 
the  delivery  of  the  property. 


166 

In  this  case  the  receipt  was  made  immediately  after  the 
receipt  of  the  property,  and  delivered  very  soon  after,  the 
intervening  time  being  while  the  plaintiff  was  getting  his 
team  preparatory  to  starting  home.  By  accepting  the  con- 
tract without  objection  the  other  party  had  a  right  to  as- 
sume that  he  assented  to  its  terms,  and  the  fact  of  not  read- 
ing it  cannot  be  interposed  to  prevent  the  legal  effects  of  the 
transaction.  It  appears  that  in  this  case  the  plaintiff  did, 
in  fact,  read  the  paper  on  the  next  day,  and  knew  and  un- 
derstood its  contents.  If  he  was  not  satisfied  with  its  terms, 
he  had  then  abundant  opportunity  to  reclaim  his  property 
or  insist  upon  a  modification  of  its  provisions,  but  he  did 
neither.  If  he  relied  upon  the  statement  of  the  agent,  that 
the  property  would  be  shipped  within  two  weeks,  it  must 
have  been  upon  faith  in  the  opinion  of  the  agent,  and  not 
as  a  binding  contract  with  the  company,  as  the  bill  of  lading 
expressly  notified  him  that  station  agents  had  no  authority 
to  vary  or  change  the  terms  of  a  contract  as  expressed  in 
the  paper  delivered.  Although  the  receipt  or  bill  of  lading 
must  be  taken  as  the  contract  between  the  parties,  there  is 
nothing  in  its  terms  which  will  protect  the  company  from 
liability  if  the  delay  and  consequent  loss  was  occasioned  by 
its  negligence,  or  that  of  its  servants  or  agents.  The  rec- 
ord presents  the  case  in  a  peculiar  aspect.  The  complaint 
is  on  the  parol  contract  to  ship  the  property  within  two 
weeks.  The  trial  judge  charged  that  the  parol  contract  was 
binding  and  obligatory  instead  of  the  bill  of  lading,  but 
charged  also  that  unless  the  delay  was  produced  by  the 
negligence  of  the  defendant  or  its  agents  the  plaintiff  could 
not  recover.  The  general  term  held  that  the  evidence  not 
being  sufficient  to  establish  gross  negligence,  the  plaintiff 
could  not  recover  on  that  ground,  but  also  held  that  the 
parol  contract  was  binding,  and  as  the  property  was  not 
shipped  within  the  two  weeks  specified,  the  plaintiff  was 
entitled  to  recover. 

Another  embarrassment  is  that  the  refusal  to  the  sev- 
eral requests  to  charge  which  were  intended  to  present  the 


167 

point  as  to  the  binding  force  of  the  two  contracts  was  ex- 
cepted to  in  such  a  general  form  that  it  is  doubtful  whether 
in  strictness  it  is  available  in  this  court.  If  the  trial  judge 
had  ignored  the  parol  agreement,  the  verdict  could  not  be 
disturbed  unless  the  case  is  destitute  of  any  evidence  to 
sustain  the  finding  of  negligence,  because  the  defendant  is 
liable  if  the  injury  was  produced  by  its  negligence.  Nor  is 
it  necessary  to  establish  gross  negligence  as  the  general  term 
seems  to  have  supposed.  A  want  of  ordinary  care  by  a 
carrier,  if  it  causes  injury,  is  sufficient. 

We  think  that  there  must  be  a  new  trial.  The  charge 
of  the  judge  that  the  parol  contract  was  a  contract  between 
the  parties  may  have  had  a  material  influence  upon  the  jury 
upon  the  question  of  negligence,  and  although  the  exception 
to  the  request  is  not  sufficiently  specific,  the  same  question 
was  presented  during  the  trial  and  an  exception  properly 
taken.  If  an  amendment  of  the  complaint  is  necessary,  it 
can  be  obtained  as  a  matter  of  course.  Allegations  of  neg- 
ligence would  not  substantially  change  the  cause  of  action. 
The  failure  to  perform  either  contract  through  negligence 
would  be  a  breach  of  duty. 

judgment  reversed  and  new  trial  ordered. 


Editor's  Note. — "In  this  State,  I  t2ke  it,  the  principle  that 
parol  evidence,  which  goes  to  destroy,  contradict,  extend  or  alter 
a  deed  is  inadmissible,  has  been  recognized  with  some  salutary 
exceptions  and  modifications ;  for  instance,  where  fraud  or  sur- 
prise in  obtaining  the  deed,  mistake  of  the  scrivener,  in  departing 
from  his  instructions,  or  any  other  clear  matter  of  mistake  are 
made  to  appear  and  present  themselves  to  the  court,  parol  evidence 
has  been  held  to  be  admissible  in  this  State."  Smith,  J.,  in  Collan 
v.  Hocker,  1  Rawle   (Pa.)   107,  111. 


168 

MISREPRESENTATION 

What  constitutes  misrepresentation 

NORMAN  SPURR  v.  CALEB  BENEDICT, 

99  Mass.  463. 

Bill  in  equity  for  an  injunction  on  the  defendant 
against  prosecuting  an  action  at  law  on  a  promissory  note 
of  the  plaintiff,  and  for  general  relief  in  the  matter  of  a 
purchase  of  land  by  the  plaintiff  of  the  defendant.  The  case 
was  referred  to  a  master,  who  found  the  facts  hereafter 
stated ;  and  was  reserved  on  his  report,  by  Gray,  J.,  for  the 
determination  of  the  full  court. 

In  the  autumn  of  1864  the  defendant  entered  into  a 
negotiation  to  buy  from  Sarah  Wheelock  a  lot  of  forty-five 
acres  of  woodland,  situated  near  the  boundary  line  between 
Sheffield  and  Great  Barrington;  employed  Lyman  M.  Merry- 
field,  who  owned  the  land  adjoining,  to  point  out  the 
lot  to  him,  and  took  a  deed  from  Wheelock,  dated  October 
17,  1864,  supposing  that  it  covered  all  the  land  pointed 
out  by  Merryfield,  when,  in  fact,  Merryfield  was  mistaken 
as  to  the  boundaries  of  Wheelock's  lot,  and  had  pointed 
out  to  the  defendant  as  part  of  it  some  land  adjoining  a 
cleared  field  and  an  old  public  road,  which  did  not  belong 
to  Wheelock  and  was  not  covered  by  her  deed. 

Later  in  the  autumn  the  defendant  offered  to  sell  the 
lot  to  the  plaintiff,  to  whom  he  represented  that  it  was  situ- 
ated in  Sheffield,  adjoined  a  cleared  field  and  a  good  wagon 
road,  "was  all  of  it  dry  land,  and  very  comfortable  land  to 
get  timber  off  of,"  "would  cut  from  fifteen  to  eighteen 
cords  per  acre,"  and  that  one  "could  go  with  a  team  on  al- 
most any  part  of  it."  And  soon  afterwards  Henry  Snyder, 
the  plaintiff's  agent,  met  the  defendant,  by  agreement,  for 
an  examination  of  the  land ;  and  the  defendant  pointed  out 
to  him,  as  belonging  to  it,  the  land  adjoining  the  cleared 
field  and  the  road,  "and  one  boundary,  at  least  (a  large 
rock),  which  was  at  some  distance  from  his  land."    "As  the 


169 

result  of  this  examination  it  was  agreed,  between  Snyder 
and  the  defendant,  that  the  defendant  should  convey  the 
land  to  the  plaintiff,  who  should  give  his  note  to  the  de- 
fendant in  the  sum  of  $600."  "Snyder  wanted  a  warranty 
deed,  which  the  defendant  refused  to  give,  but  executed  a 
quit-claim  deed"  without  any  covenant  of  title  or  warranty, 
"and  left  it  with  one  Bradford,  to  be  delivered  to  the  plain- 
tiff when  he  should  give  his  note  for  the  $600;  and  the 
plaintiff  afterwards  called  and  took  his  deed  and  left  the 
note,"  which  was  made  payable  on  demand.  "Snyder's  first 
offer  to  the  defendant  was,  'I  will  give  you  $600  if  you  will 
survey  the  land  out  for  me,'  and  the  defendant  replied,  'No, 
I  will  not  do  that,'  and,  either  in  this  connection  or  while 
they  were  upon  the  land,  said,  'There  are  the  minutes;  you 
can  survey  it  as  well  as  I  can.' " 

The  deed  described  the  premises  conveyed  as  a  parcel 
of  land  in  Sheffield,  "being  the  same  tract  of  land  I  pur- 
chased of  Sarah  Wheelock  by  her  deed  dated  October  17, 
1864,"  and  referred  to  the  Wheelock  deed,  or  the  record 
thereof,  for  a  more  particular  description.  The  land  which 
it  covered  was  not  situated  in  Sheffield,  but  in  Great  Bar- 
rington,  a  hundred  and  thirty  rods  north  of  the  boundary 
line  between  the  two  towns ;  would  not  cut  from  fifteen  to 
eighteen  cords  of  wood  per  acre,  but  would  cut  in  part  five 
or  six  cords,  in  part  eight  or  ten  and  in  part  twelve  or 
fifteen  cords ;  included  some  ledges  of  rock  not  accessible 
by  teams,  and  also  a  swamp  more  than  an  acre  in  area ; 
and  did  not  adjoin  any  public  road,  but  did  adjoin  a  "wood 
road"  along  its  southern  boundary. 

The  land  erroneously  shown  to  Snyder  as  belonging 
to  the  lot  included  at  least  six  or  eight  acres,  would  cut 
from  twelve  to  fifteen  cords  of  wood  per  acre,  and,  as  above 
stated,  adjoined  an  old  public  road  (which,  however,  was 
but  little  used)  and  a  cleared  field. 

During  the  ensuing  winter  Snyder  went  upon  the  con- 
veyed premises  with  a  surveyor  to  identify  their  bounda- 
ries, but  was  unsuccessful  in  the  effort ;  and  by  the  direc- 


170 

tion  of  the  plaintiff  (who  had  never  occupied  or  used  the 
land)  he  proposed  to  the  defendant  to  return  the  deed  and 
take  back  the  note;  but  the  defendant  refused  the* proposal, 
and  afterwards  sued  the  note  against  the  plaintiff;  where- 
upon the  plaintiff,  who  had  fully  discovered  the  mistake 
about  the  land,  made  tender  to  him  of  a  reconveyance  of 
the  land  and  of  indemnity  against  all  expenses  incurred  by 
him  in  the  suit  on  the  note,  and  demanded  of  him  a  surren- 
der of  the  note,  on  the  ground  of  mistake  in  the  contract ; 
and  upon  his  refusal  filed  this  bill. 

The  plaintiff  and  Snyder  were  permitted  to  testify  be- 
fore the  master,  against  the  defendant's  objection,  that  if 
they  had  known  the  facts  about  the  land,  as  afterward  ascer- 
tained, they  would  not  have  concluded  the  purchase;  and 
the  plaintiff  further  to  testify  that  the  fact  alone  that  the 
land  was  situated  in  Great  Barrington  instead  of  Sheffield 
would  have  made  a  difference  with  him. 

Foster,  J. :  There  can  be  no  doubt  of  the  full  equity 
jurisdiction  of  this  court  to  set  aside  a  conveyance  of  land, 
on  the  ground  of  mistake,  where  the  vendor  has  undertaken 
to  sell  something  which  he  did  not  own,  and  the  estate 
embraced  in  the  deed,  although  owned  by  him,  is  rot  that 
which  the  vendee  intended  to  buy  and  supposed  that  he  was 
obtaining  by  the  conveyance.  In  such  a  case  the  equity  for 
a  recission  of  the  transaction  does  not  depend  upon  any 
intentional  fraud  on  the  part  of  the  grantor,  and  it  is  by  no 
means  limited  to  cases  in  which  an  action  for  deceit  would 
lie  at  common  law.  Mistake  is  a  head  of  equity  jurisdiction 
distinct  from  fraud.  Relief  is  granted  on  the  ground  that  it 
would  be  unconscientious  to  oblige  a  man,  who  has  not  been 
himself  negligent  or  in  fault,  to  adhere  to  his  bargain,  and 
to  retain  property  which  he  was  induced  to  purchase  by  a 
misapprehension  as  to  a  material  and  essential  circum- 
stance, which  he  was  led  into  by  the  conduct  of  the  other 
party. 

In  the  present  instance  the  defendant  not  only  made 
exaggerated  statements  as  to  the  value  and  quality  of  the 


171 

land  he  proposed  to  sell,  but  he  pointed  out  to  the  plaintiff's 
agent  some  land  which  he  did  not  own,  as  embraced  in  the 
bargain,  and  one  boundary  which  was  at  a  considerable 
distance  from  the  premises  which  he  actually  owned  and 
conveyed  by  his  deed.  The  land  pointed  out  to  the  plaintiff's 
agent  was  of  a  better  quality  than  that  conveyed,  would 
cut  more  wood  and  corresponded  with  the  description 
which  the  defendant  had  given  to  the  plaintiff  himself.  All 
this  appears  to  have  been  done  innocently.  Neither  the  pur- 
chaser nor  his  agent  seems  to  have  been  negligent.  They 
naturally  relied  on  the  vendor  to  point  out  the  boundaries 
of  his  estate,  and  there  was  nothing  in  the  deed  to  indicate 
that  the  land  shown  and  conveyed  was  not  the  same.  The 
defendant  was  himself  mistaken  as  to  what  he  owned,  and 
consequently  misled  the  plaintiff;  and  under  the  influence 
of  this  mutual  error  the  transaction  was  consummated.  But 
the  prejudicial  consequences  to  the  purchaser  are  the  same 
as  if  the  conduct  of  the  vendor  had  been  designedly  fraudu- 
lent. He  has  obtained,  not  what  he  expected  to  have,  but 
something  else  which  he  did  not  intend  to  buy  and  would 
not  have  bought  if  he  had  known  the  truth.  Of  this  we 
are  satisfied,  upon  the  report  of  the  master;  and  it  amounts 
to  a  case  for  equitable  relief. 

Nor  is  the  fact  that  only  a  quit-claim  deed  was  given 
any  bar  to  the  plaintiff's  equity ;  because  the  mistake  does 
not  relate  to  the  title  obtained,  but  to  the  very  subject  mat- 
ter of  the  contract.  One  parcel  was  bargained  for  and  sup- 
posed by  both  parties  to  be  embraced  in  the  deed ;  another 
and  different  one  was  actually  conveyed.  The  absence  of 
covenants  of  title  and  warranty  can  make  no  difference, 
as  their  insertion  would  have  afforded  no  protection  against 
a  mistake  of  this  description.  For  a  citation  of  the  authori- 
ties and  discussion  of  this  question,  see  Earle  v.  De  Witt, 
6  Allen  520.  The  plaintiff  has  already  executed  and  ten- 
dered a  reconveyance  of  the  estate,  and  is  entitled  to  a 

Decree  perpetually  enjoining  the  defendant  against 
prosecuting  the  action  at  law  pending  upon  the  note  given 
for  the  purchase  money. 


172 

Misrepresentation — Warranties 

WOLCOTT,  JOHNSON  &  CO.  v.  LEWIS  D.  MOUNT, 

38  N.  J.  L.  496  (1875). 

Appeal  from  judgment  for  plaintiff. 

Beasley,  C.  J.:  The  defendant  (Wolcott,  Johnson  & 
Co.)  sold  to  the  plaintiff  (Mount)  certain  seed  as  and  for 
"early  strap-leaf  red-top  turnip  seed."  The  seed,  being 
planted,  turned  out  to  be  a  different  kind,  so  that  the  plain- 
tiff lost  his  crop.  It  was  shown  in  the  case  that  the  defend- 
ant believed,  at  the  time  of  the  sale,  that  the  seed  was  of  the 
kind  which  the  plaintiff  sought  to  purchase.  The  plaintiff 
brought  his  suit  before  a  justice,  on  the  ground  that  the 
sale  to  him,  under  these  conditions,  comprised  a  warranty. 
The  decision  was  in  his  favor,  and  such  judgment  was 
affirmed  in  the  Common  Pleas,  and,  on  certiorari,  in  the 
Supreme  Court. 

Therefore,  the  point  before  this  court  now  is  whether, 
on  the  facts  stated,  the  Court  of  Common  Pleas  could 
lawfully  infer  that  the  defendant  warranted  the  article  sold 
to  be  of  the  particular  kind  for  which  it  was  purchased. 

The  subject  of  warranty,  in  its  application  to  the  class 
of  cases  in  which  the  present  one  is  comprehended,  has 
been  involved  in  much  confusion.  The  authorities  are  not 
consistent,  and  they  are  very  numerous.  It  has  always 
seemed  to  me  that  a  considerable  part  of  this  contrariety 
has  arisen  from  a  misapprehension  with  respect  to  what 
was  decided  in  the  famous  case  of  Chandelor  v.  Lopus, 
Cro.  Jac.  4.  The  only  question  in  that  case,  as  I  under- 
stand it,  was  as  to  the  sufficiency  of  the  averments  in  the 
declaration.  The  plaintiff's  case  appearing  upon  the  record 
is  stated  in  the  report  in  these  words,  viz. :  "Whereas,  the 
defendant  being  a  goldsmith,  and  having  skill  in  jewels  and 
precious  stones,  had  a  stone  which  he  affirmed  to  Lopus 
to  be  a  bezoar  stone,  and  sold  it  to  him  for  a  hundred 
pounds ;  ubi  revera,  it  was  not  a  bezoar  stone."  The  con- 
tention in  the  court  of  error,  upon  this  record,  was  that 


173 

enough  did  not  here  appear  to  charge  the  defendant,  because 
it  was  shown  neither  that  he  warranted  it  to  be  a  bezoar 
stone  nor  knew  it  to  be  such.  Instead  of  a  warranty  be- 
ing expressly  laid  in  the  declaration,  a  mere  affirmation 
as  to  the  kind  of  article  sold  was  laid,  and  it  was  this  form 
of  pleading  which  was  adjudged  to  be  bad.  Now,  an 
affirmation  of  this  kind  may  or  may  not  be  a  warranty, 
according  to  circumstances,  and  the  fault  of  the  pleading, 
therefore,  was  that,  instead  of  a  warranty,  it  set  forth  in- 
conclusive evidence  of  a  warranty.  The  pleader  was  bound 
to  state  the  transaction  according  to  its  legal  effect,  and  this 
was  all  that  was  decided.  And  such  a  form  of  statement 
at  the  present  day  would,  I  think,  be  deemed  ill.  *  *  * 
The  tendency  of  recent  adjudications  has  been,  I  think, 
to  put  this  subject  on  a  reasonable  footing.  Starting  from 
the  admission  that,  in  the  absence  of  fraud  and  of  a  war- 
ranty, the  rule  of  caveat  emptor  applies,  the  effort  is  not 
to  elevate  particular  expressions  contained  in  a  given  con- 
tract into  a  general  rule  of  law,  but  to  regard  each  case  in 
the  light  of  its  own  circumstances,  and  with  respect  solely 
to  the  understanding  of  the  parties.  Whether  the  repre- 
sentation or  affirmation  accompanying  a  sale  shall  be  re- 
garded as  a  warranty  or  as  simplex  commendatio,  is  a  ques- 
tion to  be  solved  by  a  search  for  the  intention  of  the  con- 
tracting parties.  The  two  cases  of  Jendwine  v.  Slade,  2 
Espinasse  572,  and  Power  v.  Barham,  4  A.  and  E.  473, 
are  conspicuous  examples  of  this  rule.  In  the  former  there 
was  a  sale  shown  of  two  pictures,  the  catalogue  of  the  auc- 
tion describing  one  as  a  sea  piece,  by  Claude  Lorraine, 
and  the  other,  a  fair,  by  Teniers.  This  description  was 
held  by  Lord  Kenyon  to  be  no  warranty  that  the  pictures 
were  the  genuine  works  of  the  artists  referred  to,  but 
merely  an  expression  of  the  opinion  of  the  vendor  to  that 
effect.  In  the  other  case  it  appeared  that,  at  a  sale  of 
four  pictures,  they  were  described  as  "four  pictures,  views 
in  Venice — Carnaletti,"  and  it  was  left  to  the  jury  to  decide 
whether  the  intention  was  to  warrant  the  pictures  as  au- 


174 

thentic,  the  court  distinguishing  this  case  from  the  former 
one  by  the  circumstance  that  Carnaletti  was  comparatively 
a  modern  painter,  the  authenticity  of  whose  works  was 
capable  of  being  known  as  a  fact,  while,  with  respect  to 
the  productions  of  very  old  painters,  an  assertion  as  to 
their  genuineness  was  necessarily  a  matter  of  opinion.  In 
these  instances  the  respective  affirmations  of  the  vendor 
were  of  equivalent  import,  intrinsically  considered;  but  it 
was  left  open,  as  a  matter  of  inference,  whether  they  were 
to  have  the  same  signification  when  used  under  variant  cir- 
cumstances. The  question  consequently  is,  in  every  case 
of  this  kind,  whether  the  conditions  were  such  that  the 
vendee  had  the  right  to  understand,  and  did  so  understand, 
that  an  affirmation  or  representation  made  by  the  vendor 
was  meant  as  a  warranty. 

And  for  the  determination  of  this  question,  Mr.  Ben- 
jamin, in  his  admirable  Treatise  on  Sales,  page  499,  says : 
"A  decisive  test  is  whether  the  vendor  assumes  to  assert  a 
fact  of  which  the  buyer  is  ignorant,  or  merely  states  an 
opinion  or  judgment  upon  a  matter  of  which  the  vendor 
has  no  special  knowledge,  and  on  which  the  buyer  may 
be  expected  also  to  have  an  opinion  and  to  exercise  his 
judgment.  In  the  former  case  there  is  a  warranty;  in  the 
latter,  not."     *     *     * 

Resorting,  then,  to  the  principle  and  test  just  pro- 
pounded, it  is  manifest  that  the  judgment  of  the  Supreme 
Court  cannot  be  disturbed.  The  Court  of  Common  Pleas, 
in  weighing  the  evidence,  had  a  right  to  infer  that  a  war- 
ranty of  the  character  of  the  article  sold  was  within  the 
understanding  of  the  contracting  parties.  The  seller  in 
this  case  asserted,  at  the  time  of  the  sale,  that  the  seed 
was  of  the  species  which  the  vendee  was  in  search  of. 
When  he  made  this  express  assertion,  he  was  aware  that 
the  vendee  could  have  no  opinion  for  himself  on  the  sub- 
ject, for  the  case  states  that  the  seed  could  not  be  distin- 
guished by  sight  or  touch.  The  vendee  also  knew  that 
the  vendor  could  not  be  stating  the  result  of  his  own  ob- 


175 

servation.  The  facts  do  not  admit  of  the  imperative  in- 
ference that  the  assertion  of  the  vendor  was  mere  com- 
mendation of  his  goods,  or  even  that  it  was  the  utterance 
of  his  view  as  an  expert.  If  the  seller  had  stated  the  exact 
truth,  he  would  have  said  that  he  had  bought  the  seed 
as  seed  of  the  specified  kind,  but  that  he  did  not  know 
whether  it  was  so  or  not.  Instead  of  doing  this,  he  made 
the  positive  assertion  in  question.  From  such  an  assertion, 
under  the  circumstances  in  evidence,  I  think  the  court, 
although  it  was  not  bound  so  to  do,  had  the  right  to  infer 
that  there  was  a  warranty. 
Judgment  affirmed. 


FRAUD 
Statements  not  amounting  to  fraud 

DEMING  v.  DARLING, 
148  Mass.  504  (1889). 

Holmes,  J. :  This  is  an  action  for  fraudulent  repre- 
sentation alleged  to  have  been  made  to  one  Dr.  Jordan,  the 
plaintiff's  agent,  for  the  purpose  of  inducing  the  plaintiff  to 
purchase  a  railroad  bond  from  the  defendant. 

Among  the  representations  relied  on,  one  was  that  the 
railroad  mortgaged,  which  was  situated  in  Ohio,  was  good 
security  for  the  bonds ;  and  another  was  that  the  bond  was 
of  the  very  best  and  safest,  and  was  an  A  No.  1  bond.  With 
regards  to  these  and  the  like,  the  defendant  asked  the  Court 
to  instruct  the  jury  "that  no  representation  which  the  de- 
fendant might  have  made  or  did  make  to  Dr.  Jordan  in  re- 
lation to  the  value  of  the  bond  in  question,  or  of  the  railroad, 
its  terminals,  and  other  property  which  were  mortgaged  to 
secure  it,  with  other  bonds,  even  though  false,  were  repre- 
sentations upon  which  Dr.  Jordan  ought  to  have  relied,  and 
are  not  sufficient  to  furnish  any  grounds  for  this  action" ; 


176 

and  also,  "that  each  of  the  expressions  'and  that  the  same' 
(meaning  said  railroad  and  all  the  property  covered  by  the 
mortgage)  'was  good  security  for  said  bonds,'  'that  said 
bond  was  of  the  very  best  and  safest,  and  was  an  A  No.  1 
bond,'  are  expressions  of  opinion  of  value,  and  even  though 
false,  are  not  such  representations  as  Dr.  Jordan  had  a  right 
to  rely  upon,  and  are  not  enough  to  furnish  any  grounds 
for  this  action." 

The  Court  declined  to  give  these  instructions,  and  in- 
stead instructed  the  jury  that  "an  expression  of  opinion, 
judgment  or  estimate,  or  a  statement  of  a  promissory  nature 
relating  to  what  would  be  in  the  future,  so  far  as  they  were 
expressions  of  opinion,  if  made  in  good  faith,  however 
strong  as  expressions  of  belief,  would  not  support  an  action 
of  deceit." 

It  will  be  seen  that  the  fundamental  difference  between 
the  instructions  given  and  those  asked  is  that  the  former 
require  good  faith.  The  language  of  some  cases  certainly 
seems  to  suggest  that  bad  faith  might  make  a  seller  liable 
for  what  are  known  as  seller's  statements,  apart  from  any 
other  conduct  by  which  the  buyer  is  fraudulently  induced 
to  forbear  inquiries.  Pike  v.  Fay,  101  Mass.  134.  But  this 
is  a  mistake.  It  is  settled  that  the  law  does  not  exact  good 
faith  from  a  seller  in  those  vague  commendations  of  his 
wares  which  manifestly  are  open  to  difference  of  opinion, 
which  do  not  imply  untrue  assertions  concerning  matters  of 
direct  observation  (Teague  v.  Irwin,  127  Mass.  217)  and 
as  to  which  it  always  has  been  "understood,  the  world  over, 
that  such  statements  are  to  be  distrusted."  Brown  v.  Cas- 
tles, 1 1  Cush.  348,  350 ;  Parker  v.  Moulton  also  shows  that 
the  rule  is  not  changed  by  the  mere  fact  that  the  property  is 
at  a  distance,  and  is  not  seen  by  the  buyer.  Moreover,  in 
this  case,  market  prices  at  least  were  easily  accessible  to  the 
plaintiff. 

The  defendant  was  known  by  the  plaintiff's  agent  to 
stand  in  the  position  of  a  seller.  If  he  went  no  further 
than  to  say  that  the  bond  was  an  A  No.  1  bond,  which  we 


177 

understand  to  mean  simply  that  it  was  a  first-rate  bond,  or 
that  the  railroad  was  good  security  for  the  bonds,  we  are 
constrained  to  hold  that  he  is  not  liable  under  the  circum- 
stances of  this  case,  even  if  he  made  the  statement  in  bad 
faith.  See,  further,  Veasey  v.  Doton,  3  Allen  380 ;  Belcher 
v.  Costello,  122  Mass.  189.  The  rule  of  law  is  hardly  to  be 
regretted,  when  it  is  considered  how  easily  and  insensibly 
words  of  hope  or  expectation  are  converted  by  an  interested 
memory  into  statements  of  quality  and  value  when  the  ex- 
pectations have  been  disappointed. 
********** 

Exceptions  sustained. 


What  constitutes  fraud 

CABOT  v.  CHRISTIE, 

42  Vt.  121  (1869). 

Appeal  from  judgment  for  defendant. 

Case  for  false  warranty  in  the  sale  of  a  farm. 

The  plaintiff  gave  evidence  tending  to  show  that  he 
bought  the  farm  at  the  time  and  for  the  price  stated  in  the 
declaration,  and  that  the  defendant  made  representation  in 
respect  to  the  number  of  acres,  as  of  his  own  knowledge, 
designedly  intending  to  induce  the  plaintiff  to  suppose  and 
believe,  and  thereby  the  plaintiff  was  induced  to  and  did 
suppose  and  believe,  that  the  farm  contained  at  least  one 
hundred  and  thirty  acres  of  land,  and  relying  thereupon, 
the  plaintiff  made  the  purchase ;  that  the  defendant  knew 
that  there  was  not  one  hundred  and  thirty  acres,  or  he  didn't 
know  that  there  was  that  quantity ;  that  in  fact  there  was 
only  one  hundred  and  seventeen  acres  and  a  few  rods  in  the 
farm ;  that  the  plaintiff  had  no  knowledge  of  the  quantity 
except  from  the  defendant's  representation. 

The  defendant  gave  evidence  tending  to  show  that  he 
supposed  there  was  one  hundred  and  thirty  acres  and  a  little 


178 

more  in  the  farm,  derived  from  what  he  had  heard  said, 
and  from  various  deeds  in  his  possession  of  various  grantors 
and  of  various  parcels,  but  that  he  did  not  know,  and  did 
not  profess  or  represent  to  the  plaintiff  that  he  knew  how 
many  acres  there  were  in  fact ;  that  he  gave  the  plaintiff 
all  the  information  and  sources  of  information  he  had  on 
the  subject,  neither  making  any  false  representation,  nor 
fraudulent  concealment,  nor  any  undertaking  as  to  the  num- 
ber of  acres  in  the  farm.  There  was  no  evidence  or  claim 
that  the  farm  was  sold  by  the  acre;  but  it  appeared  that  it 
was  sold  in  lump,  or  as  a  farm  entire. 

The  jury  returned  a  verdict  for  the  defendant.  The 
plaintiff  excepted  to  the  charge.     *     *     * 

Steele,  J.:  1.  The  plaintiff  cannot  recover  upon  the 
ground  of  a  parol  warranty  of  the  quantity  of  the  land.  If 
the  quantity  was  warranted  it  should  be  provable  by  the 
deed.  It  is  true  that  a  deed  of  conveyance  need  not  con- 
tain all  the  stipulations  of  the  parties.  For  example,  the 
agreements  as  to  consideration  and  mode  of  payment  need 
not  be  embraced  in  the  deed,  for  the  instrument  purports  to 
be  the  deed  of  but  one  of  the  parties.  But  it  does  purport 
to  contain  the  covenants  of  the  grantor  with  respect  to  the 
property  conveyed.  To  add  a  new  covenant  by  parol  proof 
would  be  a  palpable  violation  of  the  familiar  rule  that  writ- 
ten contracts  are  not  to  be  varied  by  oral  testimony.  Such 
a  parol  stipulation,  it  has  been  held,  could  not  be  proved  in 
respect  to  an  ordinary  bill  of  sale  of  personal  property. 

Nor  is  the  plaintiff  entitled  to  recover  in  this  action 
upon  the  ground  of  mistake.  A  mutual  and  material  mis- 
take, by  which  the  purchaser  was  misled  as  to  the  quan- 
tity of  land,  would  be  a  more  appropriate  ground  for  relief 
in  a  court  of  chancery  than  in  a  court  of  law. 

If,  then,  the  plaintiff  was  entitled  to  recover  at  all  in 
this  case,  it  was  by  reason  of  some  fraud  on  the  part  of  the 
defendant  bv  which  the  bargain  was  induced. 


179 

The  plaintiff  complains  of  the  ruling  of  the  County 
Court  upon  the  subject  of  fraud.  It  is  conceded  that  the 
quantity  of  land  was  represented  incorrectly.  The  Court 
properly  told  the  jury  that  this,  in  itself,  would  not  amount 
to  fraud.  To  entitle  the  plaintiff  to  a  recovery  upon  that 
ground,  the  defendant  must  have  made  some  representation 
upon  the  subject  that  he  did  not  believe  to  be  true.  The 
plaintiff  claims,  and  his  evidence  tended  to  prove,  that  the 
defendant  did  make  such  a  representation  by  stating  the 
quantity  of  land  as  a  matter  within  his  own  knowledge, 
when,  in  fact,  as  the  defendant  concedes,  it  was  a  matter 
upon  which  he  had  only  a  belief.  We  think  it  very  clear 
that  a  party  may  be  guilty  of  fraud  by  stating  his  belief  as 
knowledge.  Upon  a  statement  of  the  defendant's  mere 
belief,  judgment,  or  information,  the  plaintiff  might  have 
regarded  it  prudent  to  procure  a  measurement  of  the  land 
before  completing  his  purchase.  A  statement,  as  of  knowl- 
edge, if  believed,  would  make  a  survey  or  measurement 
seem  unnecessary.  A  representation  of  a  fact,  as  of  the 
party's  own  knowledge,  if  it  prove  false,  is,  unless  explained, 
inferred  to  be  willfully  false  and  made  with  an  intent  to 
deceive,  at  least  in  respect  to  the  knowledge  which  is  pro- 
fessed. A  sufficient  explanation,  however,  sometimes  arises 
from  the  nature  of  the  subject  itself,  or  from  the  situation 
of  the  parties,  being  such  that  the  statement  of  knowledge 
could  only  be  understood  as  an  expression  of  strong  belief 
or  opinion.  But  the  quantity  of  land  in  a  farm  is  a  matter 
upon  which  accurate  or  approximately  accurate  knowledge 
is  not  at  all  impossible  or  unusual.  If  the  defendant  had 
only  a  belief  or  opinion  as  to  the  quantity  of  land,  it  was 
an  imposition  upon  the  plaintiff  to  pass  off  such  belief  as 
knowledge.  So,  too,  if  he  made  an  absolute  representation 
as  to  the  quantity,  which  was  understood  and  intended  to 
be  understood  as  a  statement  upon  knowledge,  it  is  pre- 
cisely the  same  as  if  he  had  distinctly  and  in  terms  professed 
to  have  knowledge  as  to  the  fact.  It  is  often  said  that  a 
representation  is  not  fraudulent  if  the  party  who  makes  it 


180 

believes  it  to  be  true.  But  a  party  who  is  aware  that  he  has 
only  an  opinion  how  a  fact  is,  and  represents  that  opinion 
as  knowledge,  does  not  believe  his  representation  to  be  true. 
As  is  well  said  in  a  note  to  the  report  of  the  case  of 
Taylor  v.  Ashton,  11  Mees.  &  Wels.  418  (Phila.  ed.),  the 
belief  of  a  party  to  be  an  excuse  for  a  false  representation 
must  be  "a  belief  in  the  representation  as  made.  The 
scienter  will,  therefore,  be  sufficiently  established  by  show- 
ing that  the  assertion  was  made  as  of  the  defendant's  own 
knowledge,  and  not  as  mere  matter  of  opinion,  with  regard 
to  facts  of  which  he  was  aware  that  he  had  no  such 
knowledge."  The  same  principle  of  law  has  been  repeatedly 
recognized. 

In  the  case  before  us  the  plaintiff,  under  the  charge 
of  the  Court,  was  denied  the  benefit  of  this  rule  of  law, 
although  there  was  evidence  tending  to  show  every  neces- 
sary element  of  a  fraud  of  the  nature  we  have  been  con- 
sidering. The  plaintiff's  request  was  refused,  and  the  jury 
was  instructed  that  the  plaintiff  could  only  recover  in  case 
they  found  "that  the  defendant  represented  the  quantity 
of  land  different  from  what  he  knew  or  believed  to  be 
true."  Under  these  instructions  it  would  be  immaterial 
whether  he  made  the  representation  as  a  matter  of  knowl- 
edge or  as  a  matter  of  opinion  so  long  as  he  kept  within 
his  belief  as  to  the  quantity  of  land.  In  this  we  think  there 
was  error.  The  Court  properly  instructed  the  jury  that 
the  representation,  to  warrant  a  recovery,  must  have  been 
relied  on  and  have  been  an  inducement  to  the  purchase. 
The  subsequent  remark  that  the  jury,  to  hold  the  defend- 
ant, must  find  that  the  plaintiff  would  not  have  made  the 
purchase  but  for  the  representation,  we  regard  as  probably 
inadvertent. 

What  the  plaintiff  would  have  done  but  for  the  false 
representation  is  often  a  mere  speculative  inquiry,  and  is 
not  the  test  of  the  plaintiff's  right.  If  the  false  represen- 
tations were  material  and  relied  upon,  and  were  intended 
to  operate  and  did  operate  as  one  of  the  inducements  to 


181 

the  trade,  it  is  not  necessary  to  inquiry  whether  the  plaintiff 
would  or  would  not  have  made  the  purchase  without  this 
inducement. 

The  judgment  of  the  County  Court  is  reversed  and  the 
cause  is  remanded. 


What  constitutes  fraud 

ROBERTS  v.  FRENCH, 

153  Mass.  60  (1891). 

Contract  for  money  had  and  received  by  the  defendant 
to  the  plaintiff's  use.  Trial  in  the  Superior  Court,  before 
Thompson,  J.,  who  ruled  that  the  plaintiff  was  not  entitled 
to  recover,  and  after  a  verdict  for  the  defendant,  reported 
the  case  for  the  determination  of  this  Court.  The  facts 
appear  in  the  opinion. 

Holmes,  J. :  This  is  an  action  to  recover  two  hundred 
dollars  paid  by  the  plaintiff  as  part  payment  of  the  price 
of  a  lot  of  land  for  which  he  made  the  highest  bid  at  a  sale 
by  auction.  The  advertisements  described  the  lot  as  con- 
taining about  eleven  thousand  square  feet,  and  as  extending 
one  hundred  and  thirty  feet  on  the  east.  The  plaintiff's 
evidence  tended  to  show  that  at  the  sale  one  of  the  firm 
of  auctioneers  read  the  advertisement  and  said  that  the 
defendant's  husband  and  himself  had  measured  the  land 
(as  they  had  done),  and  that  its  dimensions  were  as  stated 
in  the  posted  bill,  except  as  to  the  easterly  line,  which  was 
only  one  hundred  and  seven  feet  long.  The  other  auc- 
tioneer then  proceeded  to  sell  the  property,  and  said  that 
the  easterly  line  was  one  hundred  and  seven  feet  long; 
that  the  lot  contained  about  eleven  thousand  square  feet, 
and  that  a  warranty  deed  would  be  given.  The  sale  took 
place  on  the  premises;  the  plaintiff  was  familiar  with 
them,  and  he  understood  that  he  was  buying  only  the  land 


182 

enclosed  by  the  fences.  But,  according  to  his  evidence,  he 
believed  the  statements  of  the  auctioneers  as  to  the  length 
of  the  lines  and  the  area,  and  made  his  bid  relying  upon 
them,  and  we  may  fairly  say  by  inference,  being  more  or 
less  induced  by  them  to  purchase.  The  easterly  line,  in 
fact,  was  only  ninety-five  and  a  half  feet  long;  the  other 
lines  varied  somewhat  from  the  lengths  given  at  the  sale, 
and  the  contents  were  seven  thousand  seven  hundred  and 
sixty  feet,  being  five  hundred  and  sixty-five  feet  less  than 
what  they  would  have  been  if  the  length  of  the  lines  stated 
at  the  sale  had  been  correct.  The  defendant  has  not  offered 
a  deed  describing  the  premises  as  they  were  described  by 
the  auctioneer,  but  only  a  deed  describing  them  correctly. 
The  Court  below  ruled  that  the  action  could  not  be  main- 
tained, and  the  plaintiff  excepted. 

On  the  foregoing  evidence  plainly  the  jury  might  have 
found  that  the  auctioneer  made  a  misstatement  of  fact  as 
to  the  length  of  the  easterly  line,  and  also  represented  that 
he  made  the  statement  on  the  faith  of  his  own  senses, 
because,  as  he  said,  he  and  the  defendant's  husband  (who, 
by  the  way,  was  also  her  agent,  and  was  present  and  assent- 
ing to  what  the  auctioneer  said)  had  measured  the  line. 
In  other  words,  the  statement  of  the  length  was  a  state- 
ment, as  of  the  party's  own  knowledge,  of  the  kind  which 
our  decisions  pronounce  fraudulent.  Chatham  Furnace  Co. 
v.  Moffatt,  147  Mass.  403.  Notwithstanding  the  plaintiff's 
knowledge  of  how  the  land  looked,  the  jury  also  might 
have  found  that  the  statement  in  fact  deceived  him,  and 
induced  him  to  buy,  and  that  it  materially  varied  from  the 
truth.  It  is  true  that  the  agreement  was  to  buy  a  lot  with 
known  boundaries,  and  very  likely  in  absence  of  fraud, 
the  rule  would  apply  that  monuments  govern  distances  in 
such  agreements  and  in  deeds  with  warranty.  But  that  is 
only  a  rule  of  construction;  it  does  not  mean  that  meas- 
urements are  not  material,  or  that  a  man  who  knows  the 
monuments  cannot  be  deceived  about  them.  Of  course, 
it  was  not  necessary  that  the  plaintiff's  belief  as  to  the 


183 

length  should  have  furnished  his  only  motive  for  buying, 
if  it  furnished  one  motive,  Safford  v.  Grout,  120  Mass.  20, 
25 ;  and  if  the  defendant's  agents  knew  that  the  representa- 
tion would  affect  action  on  the  part  of  the  bidders,  or  if 
under  the  known  circumstances  it  manifestly  was  likely 
to  do  so. 

The  rulings  of  the  Court  below  probably  assumed  all 
that  we  have  said,  but  was  based  on  the  cases  which  hold 
fraudulent  representations  as  to  the  contents  of  a  piece  of 
land,  the  boundaries  of  which  are  pointed  out  to  the  buyer, 
not  to  be  actionable.    Gordon  v.  Parmelee,  2  Allen  212. 

We  do  not  mean  to  question  these  decisions  in  the 
slightest  degree,  but  it  is  obvious  that  there  must  be  a  limit 
beyond  which  fraudulent  representations  cannot  be  made 
with  impunity ;  and  upon  the  whole  we  are  of  opinion  that, 
if  the  plaintiff's  evidence  is  believed,  the  representations 
made  to  him,  under  the  circumstances  in  which  they  were 
made,  went  beyond  that  limit.  When  a  man  conveys  "the 
notion  of  actual  admeasurement"  still  more,  when  he  says 
that  he  has  measured  a  line  himself  and  has  found  it  so 
long,  his  statement  has  a  stronger  tendency  to  induce  the 
buyer  to  refrain  from  further  inquiry  than  a  statement  of 
the  contents  of  a  lot  without  giving  grounds  for  the  esti- 
mate. If  false,  it  is  a  grosser  falsehood.  It  purports  on 
its  face  to  exclude  the  suggestion  that  it  is  a  mere  estimate 
which  the  other  leaves  open.  If  it  is  made  at  a  sale  by 
auction,  where  it  is  out  of  the  question  for  a  bidder  to  go 
and  verify  it  before  making  his  bid,  it  seems  to  us  reason- 
able to  say  that  the  purchaser  has  a  right  to  rely  upon  it,  as 
was  held  in  a  very  similar  case  in  Connecticut,  Stevens  v. 
Giddings,  45  Conn.  507. 
New  trial  granted. 


184 

What  constitutes  fraud. 

MITCHELL,  C.  J.,  IN  INGALLS  v.  MILLER, 

121  Ind.  191  (1889). 

Whether  the  alleged  representations  were  such  as  the 
plaintiff  had  a  right  to  rely  upon,  or  whether  they  were 
of  a  character  reasonably  calculated  to  deceive  such  a  person 
as  he  was,  were  questions  of  fact  for  the  jury.  Representa- 
tions might  be  futile  and  harmless  when  addressed  to  an 
active,  sagacious,  well-informed  man,  and  yet  the  same 
scheme  might  utterly  undo  a  weak-minded,  illiterate,  old,  or 
inexperienced  man.  "The  design  of  the  law  is  to  protect 
the  weak  and  credulous  from  the  wiles  and  stratagems  of 
the  artful  and  cunning,  as  well  as  those  whose  vigilance 
and  sagacity  enable  them  to  protect  themselves."  McKee  v. 
State,  111  Ind.  378  (381). 

The  law  is  not  blind  to  the  fact  that  communties  are 
composed  of  individuals  of  several  degrees  of  intelligence 
and  capacity,  nor  does  it  declare  as  matter  of  law  what 
representation  as  to  existing  facts  may,  or  may  not,  be 
relied  upon, 


Damage — a  necesary  element  in  action  of  tort  for  fraud. 
NYE  v.  MERRIAM, 
35  Vt.  438  (1862). 

Appeal  from  judgment  for  plaintiff. 

Case  for  fraud,  in  cheating  in  weighing  a  quantity  of 
butter  sold  by  plaintiff  to  defendant. 

Plaintiff's  evidence  tended  to  prove  that  he  sold  defend- 
ant eleven  tubs  of  butter  at  a  specified  price  per  pound ; 
that  the  butter  was  delivered  by  plaintiff's  father  in 
plaintiff's  absence ;  that  defendant  weighed  the  butter  in 
presence  of  the  father,  and  cheated  in  the  weighing,  marking 


185 

a  false  weight  on  each  tub  and  also  on  a  slip  of  paper  given 
to  the  father. 

Plaintiff  subsequently  met  the  defendant  at  Lebanon, 
N.  H.,  and  called  upon  him  to  pay  the  balance  due  for  the 
butter.  In  relation  to  what  took  place  between  the  plaintiff 
and  the  defendant  on  this  occasion,  the  plaintiff  testified  as 
follows : 

"The  defendant  felt  bad  because  he  could  not  pay  me. 
I  said  if  he  could  not  pay  me  he  must  give  me  his  note,  as 
I  had  nothing  to  show.  He  asked  how  much  it  was.  I 
told  him  I  did  not  know,  but  supposed  he  could  tell.  He 
said  he  could  not,  that  his  papers  were  in  his  valise  or  trunk. 
I  said  I  supposed  it  was  about  sixty  dollars;  he  thought  it 
was  fifty-five  or  sixty  dollars.  I  said  I  had  been  at  con- 
siderable trouble  hunting  after  him,  and  would  call  it  sixty 
dollars.  He  assented,  and  gave  me  his  note  for  sixty  dollars 
and  I  came  home.  I  had  lost  the  paper  that  my  father 
gave  me,  and  did  not  know  what  the  figures  were.  There 
was  not  a  word  said  between  us  about  fraud  in  the  weight, 
and  no  allusion  to  it  whatever." 

Defendant's  evidence  tended  to  prove  (among  other 
things)  that  the  note  was  given  to  cover  and  settle  not  only 
for  the  balance  due  for  the  butter,  but  also  for  plaintiff's 
claim  for  being  cheated  by  the  defendant  in  the  weight. 

The  Court  charged  the  jury  that  if  the  plaintiff  satisfied 
them  that  the  defendant  purposely  cheated  in  weighing 
the  butter,  still,  if  the  plaintiff's  claim  for  such  fraud  was 
mutually  settled  and  adjusted  by  the  parties,  and  included 
in  said  note,  it  would  be  a  defense  to  the  action,  but  that 
if  the  note  was  given  merely  in  settlement  of  the  balance 
due  to  the  plaintiff  for  his  butter,  at  its  reported  weight 
by  the  defendant,  and  with  no  reference  whatever  to  the 
plaintiff's  having  been  cheated  by  the  defendant  in  the 
weight,  then  the  plaintiff's  right  of  action  for  such  fraud  was 
not  thereby  barred,  even  though  the  note  given  was  large 
enough  to  cover  the  whole  of  the  butter  received  by  the 
defendant  at  the  contract  price;  that  if  the  facts  in  reference 


186 

to  the  settlement  and  giving  of  the  note  were  just  as  stated 
by  the  plaintiff,  they  would  not  amount  to  a  settlement  of 
the  fraud  in  the  weight,  if  such  existed. 

Defendant  excepted  to  the  charge.  Verdict  for  plaintiff. 

Aldis,  J. :  The  jury  have  found  that  the  defendant 
attempted  to  cheat  the  plaintiff  in  the  weight  of  his  butter; 
that  he  reported  the  weight  to  the  plaintiff's  father,  and 
marked  the  tubs  at  from  twenty  to  thirty  pounds  less  than 
the  true  weight.  The  plaintiff  was  not  present  when  the 
butter  was  weighed,  and  therefore  had  to  rely  on  the  paper 
the  defendant  gave  his  father  containing  the  figures  of  the 
weight. 

I.  If  the  plaintiff  settled  with  the  defendant  for  the 
butter  upon  the  basis  of  the  weight  as  reported  by  the 
defendant,  and  afterwards  discovered  the  fraud,  he  would, 
it  is  admitted,  be  entitled  to  recover  for  the  fraud. 

II.  But  the  defendant  claims  that  the  case,  standing 
on  the  plaintiff's  testimony,  shows  that  the  plaintiff  has 
suffered  no  damage ;  that  although  the  defendant  may  have 
attempted  a  fraud,  yet  in  fact  he  has  not  accomplished  his 
attempt;  but,  on  the  contrary,  has  given  his  note  to  the 
plaintiff  on  settlement  for  more  than  the  value  of  the  butter 
at  its  true  weight  and  contract  price. 

To  sustain  this  action  there  must  be  both  fraud  and 
damage.  A  naked  lie  that  causes  no  injury  to  another  is 
not  actionable.  The  lie  must  be  relied  upon,  and  must 
occasion  damage. 

The  defendant  claims,  first,  that  the  lie  was  not  relied 
upon ;  and,  secondly,  that  it  did  no  damage,  according  to  the 
plaintiff's  own  testimony ;  and  that  this  view  of  the  case 
was  not  presented  to  the  jury.  To  determine  this  point 
we  must  consider  the  plaintiff's  testimony,  and  the  charge 
of  the  Court  in  regard  to  it. 

The  plaintiff,  hearing  that  the  defendant  was  about  to 
go  to  California,  and  not  to  return  to  pay  for  the  butter, 
went  in  search  of  him,  and  after  going  to  New  York  and 
Boston,  found  the  defendant  at  Lebanon,  New  Hampshire. 


187 

He  called  on  the  defendant  for  payment  of  the  balance 
due  for  the  butter.  The  defendant  said  he  had  no  money. 
The  plaintiff  replied:  "If  you  cannot  pay  me  you  must 
give  me  your  note."  "He,  the  defendant,  asked  how  much 
it  was.  I  told  him  I  did  not  know,  but  supposed  he  could 
tell.  He  said  that  he  could  not;  that  his  papers  were  in 
his  valise.  I  said  I  supposed  it  was  about  sixty  dollars.  He 
thought  it  was  fifty-five  or  sixty  dollars." 

It  will  be  noticed  that  thus  far  nothing  has  been  asked 
for  by  the  plaintiff",  or  spoken  of  by  either,  but  "payment 
of  the  balance  due  for  the  butter" ;  and  that  what  that 
balance  was,  was  what  neither  could  exactly  tell, — the  plain- 
tiff supposing  it  "about  sixty  dollars,"  and  the  defendant 
"fifty-five  or  sixty."  The  plaintiff  then  proceeds :  "I  said 
I  had  been  at  considerable  trouble  hunting  after  him,  and 
would  call  it  sixty  dollars.  He  assented  and  gave  me  his 
note  for  sixty  dollars."  It  is  admitted  that  this  note  was 
large  enough  to  cover  the  full  amount  of  the  butter  at 
the  contract  price. 

The  plaintiff  further  said  that  he  had  lost  the  paper 
that  his  father  gave  him,  and  did  not  know  what  the  figures 
were. 

Now,  upon  this  evidence  it  is  clear  that  the  defendant 
might  justly  have  urged  upon  the  jury,  first,  that  the  note 
was  given  solely  for  the  balance  due  for  the  butter;  that 
the  remark  as  to  his  trouble  in  hunting  after  the  defendant 
was  not  intended  by  him,  or  understood  by  the  defendant, 
as  making  those  expenses  or  that  trouble  a  part  of  the 
consideration  of  the  note,  but  only  an  entitling  him  equitably 
or  morally  to  have  the  defendant's  doubt  whether  the 
balance  was  fifty-five  or  sixty  dollars  solved  in  the  plaintiff's 
favor.  If  given  solely  for  the  balance  due  for  the  butter, 
and  it  covered  the  whole  balance  according  to  true  weight 
and  contract  price,  we  are  at  a  loss  to  see  what  damages 
occasioned  by  the  original  false  statement  of  the  defendant 
has  accrued  to  the  plaintiff.  The  plaintiff  does  not  appear 
to  have  incurred  any  expense  or  trouble  on  account  of 


188 

the  falsehood,  or  to  have  lost  anything  by  it.  He  did 
not  go  in  search  of  the  defendant  on  account  of  it.  The 
attempt  to  cheat  was  not  consummated  by  payment  or 
settlement  at  the  lower  weight. 

Had  he  known  all  the  facts  as  to  the  attempt  to  cheat, 
he  could  not  have  asked  for  more  than  the  sixty  dollars  as 
the  balance  due  him  for  the  butter.  Nor  does  it  appear 
that  the  falsehood  had  worked  him  any  injury  for  which  he 
could  have  asked  for  further  compensation. 

Secondly,  the  defendant  might  also  have  justly  insisted 
that  to  sustain  this  action  the  plaintiff  must  show  that  he 
relied  upon  the  false  statement  in  making  the  settlement. 

The  testimony  of  the  plaintiff  might  fairly  be  claimed 
by  the  defendant  as  tending  to  show  that  the  plaintiff 
could  not  recollect  what  the  statement  originally  made  by 
the  defendant  as  to  the  weight  was;  that  the  plaintiff  had 
lost  the  paper  which  the  defendant  gave  to  his  father,  and 
had  forgotten  its  contents ;  that  the  defendant  could  not 
tell  what  the  weight  was,  and  did  not  renew  or  insist  on 
the  original  falsehood;  and  that  both  parties  acted  on  their 
own  knowledge  and  judgment  as  to  the  weight,  uninfluenced 
by  the  false  statement  of  the  weight  as  originally  made. 

If  the  plaintiff  did  not  recollect  the  false  statement, — 
did  not  know  and  could  not  tell  what  the  balance  due  for 
the  butter  was,  according  to  the  original  falsehood,  nor 
what  the  figures  were  which  indicated  the  false  weight,  but 
claimed  a  balance  sufficient  to  cover  the  whole  and  true 
weight,  and  received  it  on  settlement,  we  are  at  a  loss  to 
see  how  he  can  claim  to  have  been  defrauded. 

The  Court  in  the  charge  did  not  present  the  case  to 
the  jury  in  these  two  aspects,  but  seemed  to  hold  that  the 
original  falsehood  necessarily  included  damage,  and  gave  a 
right  for  action  for  fraud  in  weighing,  and  that,  unless  such 
right  to  sue  was  discharged  in  the  settlement,  it  remained 
in  full  vigor  and  that  the  plaintiff's  testimony  did  not  show 
it  settled.  For  the  reasons  above  given  we  think  the  charge 
erroneous,  and  that  the  judgment  must  be  reversed. 

Judgment  reversed. 


189 
UNDUE  INFLUENCE. 

Contracts  between  persons  related. 

TUCKE  ET  AL.  v.  BUCHHOLZ, 

43  Iowa  415  (1876). 

Appeal  from  decree  in  favor  of  plaintiff's. 

Beck,  J. :  The  defendant  married  the  mother  of  plain- 
tiffs, who  was  then  a  widow,  when  the  eldest  of  them  was 
about  nine  years  of  age.  From  this  time  until  they  reached 
their  majority  he  stood  in  the  place  of  a  father  and  exercised 
parental  authority  and  control  over  plaintiffs.  Their  father 
died  seized  of  the  land  in  controversy,  and  devised  to  their 
mother  a  life  estate  therein,  with  remainder  to  the  plaintiffs. 
Defendant,  after  his  marriage  with  plaintiffs'  mother,  occu- 
pied the  land  and  made  valuable  improvements  thereon. 
The  mother  died  after  the  oldest  of  the  plaintiffs  had 
attained  his  majority ;  defendant  was  thereupon  appointed 
guardian  for  plaintiffs,  who  were  then  minors.  After  the 
three  oldest  of  plaintiffs  had  become  of  age,  they  united  in 
a  bond  obligating  themselves  to  convey  to  defendant  the 
land  in  controversy  for  the  consideration  of  $500  to  be 
paid  to  each,  for  which  defendant  executed  his  promissory 
notes  payable  at  a  future  day,  without  interest.  The  other 
plaintiffs,  upon  reaching  their  majority,  executed  a  like 
obligation.  The  plaintiffs  in  this  action  sued  to  set  aside 
these  contracts,  on  the  ground  that  their  execution  was 
procured  through  the  fraud  of  defendant,  and  undue 
influence  exerted  by  him  over  them. 

We  think  the  evidence  before  us  supports  the  decree 
rendered  in  the  Circuit  Court.  From  their  earliest  child- 
hood the  plaintiffs  were  subject  to  the  authority  of 
defendant,  who  stood,  as  to  them,  in  loco  parentis.  The 
evidence  shows  that,  while  he  was  not  unkind  towards 
plaintiffs,  he  exerted  his  authority  over  them  with  a  firm 
hand.  They  were  unusually  obedient,  and  entertained  the 
respect  for  him  due  a  parent.     The  evidence  clearly  shows 


190 

that  the  contracts  were  executed  at  his  solicitation,  and 
upon  requests  that,  in  effect,  were  commands.  The  plain- 
tiffs, at  the  time  of  the  execution  of  the  instruments,  were 
not  of  ordinary  intelligence — certainly  had  not  the  acquaint- 
ance with  business  affairs  usually  possessed  by  persons  of 
their  age.  They  did  not  have  a  full  knowledge  of  the 
extent  of  their  interest  in  the  lands.  Defendant  represented 
to  one  or  more  of  plaintiffs  that  they  were  liable  to  lose 
the  land,  thus  exciting  their  fears.  The  consideration  he 
undertook  to  pay  the  plaintiffs  for  the  property  was  less 
than  half  its  value. 

The  record  presents  the  case  of  defendant's  standing  in 
loco  parentis  to  all  the  plaintiffs,  and  the  guardian  of  all  but 
one  of  them,  procuring  the  execution  of  the  contracts  after 
their  majority,  but  before  they  were  emancipated  from  the 
habit  of  obedience  and  deference  to  him,  by  the  exercise 
of  his  authority,  by  solicitation,  and,  in  one  instance,  through 
fear  excited  by  false  representations. 

The  contract,  besides,  is  unconscionable,  the  considera* 
tion  therefor  being  greatly  inadequate.  Contracts  between 
persons  holding  towards  each  other  relations  of  this  char- 
acter are  regarded  by  equity  with  jealousy;  under  its  rules 
the  rights  of  the  weaker  party  will  be  protected,  and  the 
power  and  influence  of  the  stronger,  acquired  by  long  habits 
of  authority  exercised  and  obedience  rendered,  will  be 
restrained  (1  Story's  Eq.,  pp.  309,  317). 

The  decree  of  the  Circuit  Court,  besides  declaring  the 
contract  invalid,  provides  that  plaintiffs  recover  $1,790  of 
defendant  for  the  rent  of  the  land  since  the  plaintiffs  arrived 
at  their  majority.  The  evidence  supports  this  provision  of 
the  decree.  It  ought,  however,  to  have  further  provided 
that  the  notes  executed  by  defendant,  which  the  evidence 
shows  plaintiffs  offered  to  surrender,  be  given  up  to  the 
plaintiff.  A  decree  will  be  rendered  in  this  court  conforming 
to  the  decree  of  the  court  below,  with  the  condition  just 
suggested  that  the  promissory  notes  of  defendant  be 
delivered  to  him  before  it  shall  be  operative. 

Affirmed. 


191 

Dissent  of  Adams,  J.,  does  not  concur  in  the  conclusions 
of  the  foregoing  opinion,  so  far  as  it  affects  the  contracts 
of  two  of  the  plaintiffs,  Joseph  H.  and  Adam  H.  Tucke, 
which,  he  thinks,  should  be  held  valid,  for  the  reason  that, 
in  his  opinion,  they  were,  at  the  time  of  the  execution  of 
the  instruments,  of  such  age  as  to  authorize  the  conclusion 
that  they  were  emancipated  from  the  habit  of  obedience 
to  defendant. 


When  contract  of  lender  and  borrower  is  voidable. 

FRANK  C.  DUNCAN  v.  MILTON  H.  BUTLER, 

47  Mich.  94  (1881). 

Appeal  from  decree  in  favor  of  complainant. 

Marston,  C.  J. :  No  extended  discussion  of  the  facts 
is  deemed  necessary  in  this  case.  The  bill  was  filed  to 
foreclose  a  mortgage  given  by  Duncan,  October  14,  1878, 
to  complainant  to  secure  the  payment  of  a  note  for  $5,000, 
drawing  ten  per  cent,  interest,  payable  semi-annually.  The 
property  covered  by  the  mortgage  was  all  the  right,  title  and 
interest  of  Duncan  in  and  to  any  real  estate,  situate  in 
Michigan  or  elsewhere,  which  he  acquired  as  heir  at  law 
or  devisee  under  the  last  will  and  testament  of  his  father, 
William  C.  Duncan.  Duncan  appeared,  answered  and  after- 
wards filed  a  cross-bill,  setting  up  substantially  the  same 
facts  set  forth  in  his  answer,  and  asking  relief. 

It  appears  that  Duncan  was  a  young  man  of  dissolute 
habits,  a  spendthrift  and  of  not  much  business  experience. 
Although  he  had  an  income  of  $100  per  month  from  his 
father's  estate,  yet  he  seems  to  have  been  in  want  of 
money;  he  had  previously  borrowed  from  Mr.  Butler,  and 
early  in  October,  1878,  made  application  for  another  loan. 
The  first  application  was  not  entertained,  but  at  a  subsequent 
interview  Butler  informed  him  that  he,  Butler,  owned  160 


192 

acres  of  land  in  Grand  Traverse  county,  and  that  if  he, 
Duncan,  could  use  that  land,  and  would  take  it  at  $3,200, 
he,  Butler,  would  make  the  loan,  but  at  the  same  time 
refused  to  do  anything  further  until  Duncan  would  go  see 
the  land  and  thus  ascertain  its  character  and  value.  Direc- 
tions were  given  Duncan  how  to  get  to  the  land,  and  with 
a  friend  named  Hill,  Duncan  started,  got  as  far  as  Grand 
Rapids,  remained  there  a  day  or  two,  returned  to  Detroit 
and  informed  Butler  they  had  seen  the  land;  that  it  was 
satisfactory  and  that  Duncan  would  take  it.  Thereupon 
a  conveyance  of  this  land  was  made  to  Duncan,  a  due  bill 
of  Duncan's  which  Butler  held  for  $47  was  surrendered 
up;  a  credit  of  $199  interest  upon  a  previous  mortgage 
held  by  Butler  was  endorsed,  and  $1000  in  cash  was  paid 
to  Duncan.  At  the  same  time  a  policy  of  insurance  upon 
Duncan's  life  was  taken  out  and  assigned  to  Butler,  upon 
which  the  premium  of  $110.35  was  paid,  and  $556.75  was 
retained  by  Butler  to  pay  annual  premiums  on  such  policy 
thereafter  as  the  same  should  become  due,  thus  making 
up  the  sum  of  $5,000  for  which  Duncan  gave  his  note 
and  the  mortgage  in  question  to  secure  the  same. 

At  the  time  of  this  transaction  Duncan  was  about  25 
years  of  age,  and  while  there  was  an  apparent  fairness  on 
the  part  of  Butler,  especially  in  requiring  Duncan  to  examine 
the  Grand  Traverse  lands,  yet  when  we  look  into  the  entire 
matter  we  find  it  of  so  unconscionable  a  nature  that  a 
court  of  chancery  could  not  lend  its  aid  in  enforcing  it. 
The  title  to  the  Grand  Traverse  land  was  defective  and 
the  value  thereof  was  but  little,  if  any,  over  $1,000.  Duncan 
knew  nothing  about  the  value  of  such  lands,  would  not 
have  known  even  had  he  examined  them,  and  could  have 
had  no  possible  use  for  such  lands  except  to  raise  money 
thereon,  all  of  which  facts  were  fully  known  to  Butler. 
The  security  given  by  Duncan  was  ample,  and  why  a  policy 
of  insurance  should  have  been  taken  out  and  assigned  to 
Butler  we  are  at  a  loss  to  discover,  and  more  especially 
the   reason    for    Butler's   retaining   in   his   hands   the    full 


193 

amount  of  five  years'  annual  premiums,  while  at  the  same 
time  he  had  included  such  sums  in  his  mortgage  note  and 
was  receiving  ten  per  cent,  interest  payable  semi-annually 
thereon,  although  the  money  still  remained  in  his  own  hands. 

To  state  the  transaction  mildly,  it  was  taking  advantage 
of  Duncan's  weakness  and  anxiety,  and  under  the  guise 
of  an  apparently  fair  business  transaction,  exacting  an 
usurious  interest  which  a  court  of  equity  cannot  sanction. 
In  so  far  as  the  parties  can  be  restored  to  their  former 
position  they  should  be,  and  the  moneys  received  by  Duncan 
he  should  pay  with  interest  thereon  as  he  agreed. 

The  decree  below  must  be  reversed,  and  one  entered 
giving  Duncan  the  right  to  reconvey  to  Butler  the  Grand 
Traverse  lands;  that  Butler's  mortgage  be  held  good  for 
the  $1,000  paid,  the  amount  of  the  due-bill,  and  endorse- 
ment upon  the  previous  mortgage  debt,  and  the  premium 
paid  upon  the  $5,000  insurance  policy,  with  interest  thereon 
from  the  date  of  each  payment,  conditional  however  that 
Butler  reassign  such  policy  to  Duncan;  and  that  if  such 
sums  are  not  paid  within  ninety  days  then  that  Butler  pro- 
ceed to  sell  the  mortgaged  premises.  And  the  cause  will  be 
remanded  to  the  court  below  to  render  and  enforce  a 
decree  in  accordance  with  this  opinion,  Duncan  to  recover 
costs  of  both  courts. 

Decree  reversed. 


Contracts  between  persons  in  confidential  relationship 

KLINE  v.  KLINE, 

57  Pa.  120  (1868). 

Sharswood,  J. :  Upon  a  question  arising  in  the  Or- 
phans' Court  as  to  the  right  of  the  widow  of  Gabriel  Kline 
to  any  share  of  his  estate,  an  issue  was  directed  to  try  the 
validity  of  an  antenuptial  contract  between  her  and  the 


194 

intestate,  dated  March  21,  1850,  by  which  it  seems  to 
have  been  assumed  that  she  had  by  anticipation  renounced 
or  released  all  her  rights  as  a  widow.  Whether  the  instru- 
ment does  bear  that  meaning  is  a  question  which  does 
not  arise  on  this  record,  has  not  been  argued,  and  upon 
it,  we  desire  to  be  understood,  there  is  no  opinion  either 
expressed  or  to  be  implied  in  the  judgment  we  now  enter. 
The  deed  was  executed  by  the  parties  a  very  short  time 
before  their  marriage,  and  it  was  alleged  on  behalf  of  the 
widow  that  the  circumstances  of  her  intended  husband  were 
concealed  from  her  and  misrepresented  in  the  writing  itself, 
in  consequence  of  which  she  was  induced  for  a  very  inade- 
quate consideration  to  subscribe  it.  Evidence  tending  to 
show  this  was  given.  It  was  contended  on  her  part,  that 
it  was  incumbent  on  the  plaintiffs  in  the  issue  to  show  that 
Gabriel  Kline  fully  informed  her  of  the  amount  and  extent 
of  the  property  owned  by  him.  Had  the  judge  contented 
himself  with  giving  a  simple  negative  to  this  proposition, 
it  would  perhaps  have  been  unexceptionable.  But  his 
charge  was  much  broader,  for  he  instructed  the  jury  that, 
"the  woman  was  bound  to  exercise  her  judgment  and  take 
advantage  of  the  opportunity  that  existed  to  obtain  infor- 
mation; if  she  did  not  do  so  it  was  her  own  fault.  The 
parties  were  dealing  at  arm's  length.  He  was  not  bound 
to  disclose  to  her  the  amount  or  value  of  his  property." 
This  part  of  the  charge  was  excepted  to  and  is  assigned 
for  error. 

There  is  perhaps  no  relation  of  life  in  which  more 
unbounded  confidence  is  reposed  than  in  that  existing 
between  parties  who  are  betrothed  to  each  other.  Especially 
does  the  woman  place  the  most  implicit  trust  in  the  truth 
and  affection  of  him  in  whose  keeping  she  is  about  to 
deposit  the  happiness  of  her  future  life.  From  him  she  has 
no  secrets;  she  believes  he  has  none  from  her.  To  consider 
such  persons  as  in  the  same  category  with  buyers  and 
sellers,  and  to  say  that  they  are  dealing  at  arm's  length, 
we  think  is  a  mistake.     Surely  when  a  man  and  woman 


195 

are  on  the  eve  of  marriage,  and  it  is  proposed  between 
them,  as  in  this  instance,  to  enter  into  an  antenuptial  con- 
tract upon  the  subject  of  "the  enjoyment  and  disposition 
of  their  respective  estates,"  it  is  the  duty  of  each  to  be 
frank  and  unreserved  in  the  disclosure  of  all  circumstances 
materially  bearing  on  the  contemplated  agreement.    It  may 
perhaps  be  presumed  in  the  first  instance  that  such  disclosure 
was    made,    but   any    designed    and    material    concealment 
ought  to  avoid  the  contract  at  the  will  of  the  party  who 
has   been   injured.      Neither   Judge    Story   nor   any   other 
elementary   writer   has    pretended   to   give   an    exhaustive 
catalogue  of  those  confidential  relations  which  require  the 
utmost    good    faith    (uberrima   fides)    in    all    transactions 
between  the  parties:    1  Story's  Eq.,  Sec.  215.    That  distin- 
guished jurist,  in  commenting  upon  the  class  of  cases  in 
which  secret  and  underhand  agreements,  in  fraud  of  marital 
rights,  have  been  relieved  against  in  equity,  remarks,  that 
while  they  are  meditated  frauds  on  innocent  parties,  and 
upon  that  account  properly  held  invalid,  yet  that  the  doctrine 
has  "a  higher  foundation,  in  the  security  which  it  is  designed 
to  throw  round  the  contract  of  marriage,  by  placing  all 
parties  upon  the  basis  of  good  faith,  mutual  confidence  and 
equality  of  condition."    1  Story's  Eq.,  Sec.  267. 

If,  indeed,  this  agreement  was  intended  to  debar  the 
wife  of  all  future  right  to  any  share  of  her  husband's  estate, 
in  case  she  survived  him,  it  was  a  most  unequal  and  unjust 
bargain.  It  holds  out  the  idea  in  the  recital  that  his  only 
property  was  the  house  and  lot  he  then  occupied,  while  the 
jury  might  have  inferred  from  the  evidence  that  he  was 
worth  at  that  time  ten  times  its  value.  It  bestows  on  her 
a  portion  of  the  house  for  life,  with  her  own  household 
goods  which  she  owned  before  marriage,  and  the  small 
annuity  of  $40  a  year  or  about  11  cents  a  day  to  feed  and 
clothe  her,  to  find  medical  attendance  and  nursing  for  her 
when  sick,  and  to  bury  her  decently  when  she  died.  If,  as 
has  happened,  she  should  find  herself  a  solitary  widow, 
without  children,  at  the  advanced  age  of  seventy,  such  a 


196 

pittance  leaves  her  to  be  an  object  of  private  charity  or 
public  relief.  To  say  that  she  was  bound  when  the  con- 
tract was  proposed  to  exercise  her  judgment,  that  she 
ought  to  have  taken  advantage  of  the  opportunity  that 
existed  to  obtain  information,  and  that  if  she  did  not  do 
so  it  was  her  own  fault,  is  to  suggest  what  would  be 
revolting  to  all  the  better  feelings  of  woman's  nature.  To 
have  instituted  inquiries  into  the  property  and  fortune  of 
her  betrothed  would  have  indicated  that  she  was  actuated 
by  selfish  and  interested  motives.  She  shrank  back  from 
the  thought  of  asking  a  single  question.  She  executed 
the  paper  without  hesitation,  and  without  inquiry.  She 
believed  that  he  would  propose  nothing  but  what  was  just, 
and  she  had  a  right  to  exercise  that  confidence.  She  lived 
with  him  seventeen  years,  for  aught  that  appears,  as  an 
affectionate  and  faithful  helpmate,  and  no  doubt  largely 
assisted  in  accumulating  the  fortune — at  least  of  $15,000 — 
of  which  he  died  in  possession  according  to  the  evidence. 
We  think  there  was  error  in  the  charge  and  accordingly 
Judgment  reversed  and  new  trial  ordered. 


DURESS 

What  constitutes  duress 

MORSE  v.  WOODWORTH, 

155  Mass.  233  (1891). 

Appeal  from  judgment  for  plaintiff. 

The  plaintiff  was  a  clerk  in  the  defendant's  store.  He 
was  accused  of  embezzling  money  from  the  defendant's 
store  and  when  threatened  with  arrest  he  surrendered  to 
the  defendant  certain  notes  which  he  held  against  the  de- 
fendant and  signed  a  release  of  his  claim  on  the  notes. 
This  is  an  action  to  recover  the  value  of  the  notes  which, 
the  plaintiff  contends,  were  surrendered  under  duress. 


197 

Knowlton,  J.:  The  only  remaining  exceptions  relate 
to  the  requests  of  the  defendant  and  the  rulings  of  the 
Court  in  regard  to  duress.  The  plaintiff  contended  that 
he  gave  up  the  note,  and  signed  the  release  under  duress 
by  threats  of  imprisonment.  The  question  of  law  involved 
is  whether  one  who  believes  and  has  reason  to  believe 
that  another  has  committed  crime,  and  who,  by  threats 
of  prosecution  and  imprisonment  for  the  crimes  overcomes 
the  will  of  the  other,  and  induces  him  to  execute  a  contract 
which  he  would  not  have  made  voluntarily,  can  enforce 
the  contract  if  the  other  attempts  to  avoid  it  on  the  ground 
of  duress. 

Duress  at  the  common  law  is  of  two  kinds,  duress  by 
imprisonment  and  duress  by  threats.  Some  of  the  defini- 
tions of  duress  per  minas  are  not  broad  enough  to  include 
constraint  by  threats  of  imprisonment.  But  it  is  well 
settled  that  threats  of  unlawful  imprisonment  may  be  made 
the  means  of  duress,  as  well  as  threats  of  grievous  bodily 
harm.  The  rule  as  to  duress  per  minas  has  now  a  broader 
application  than  formerly.  It  is  founded  on  the  principle 
that  a  contract  rests  on  the  free  and  voluntary  action  of 
the  minds  of  the  parties  meeting  in  an  agreement  which  is 
to  be  binding  upon  them.  If  an  influence  is  exerted  on 
one  of  them  of  such  a  kind  as  to  overcome  his  will  and 
compel  a  formal  assent  to  an  undertaking  when  he  does  not 
really  agree  to  it,  and  so  to  make  that  appear  to  be  his  act 
which  is  not  his  but  another's,  imposed  on  him  through  fear 
which  deprives  him  of  self-control,  there  is  no  contract 
unless  the  other  deals  with  him  in  good  faith,  in  ignorance 
of  the  improper  influence,  and  in  the  belief  that  he  is  acting 
voluntarily. 

To  set  aside  a  contract  for  duress  it  must  be  shown, 
first,  that  the  will  of  one  of  the  parties  was  overcome, 
and  that  he  was  thus  subjected  to  the  power  of  another, 
and  that  the  means  used  to  induce  him  to  act  were  of 
such  a  kind  as  would  overcome  the  mind  and  will  of  an 
ordinary  person.     It  has  often  been  held  that  threats  of 


198 

civil  suits  and  of  ordinary  proceedings  against  property  are 
not  enough,  because  ordinary  persons  do  not  cease  to  act 
voluntarily  on  account  of  such  threats.  But  threats  of  im- 
prisonment may  be  so  violent  and  forceful  as  to  have  that 
effect.  It  must  also  be  shown  that  the  other  party  to  the 
contract  is  not,  through  ignorance  of  the  duress  or  for 
any  other  reason,  in  a  position  which  entitles  him  to  take 
advantage  of  a  contract  made  under  constraint  without 
voluntary  assent  to  it.  If  he  knows  that  means  have  been 
used  to  overcome  the  will  of  him  with  whom  he  is  dealing, 
so  that  he  is  to  obtain  a  formal  agreement  which  is  not  a 
real  agreement,  it  is  against  equity  and  good  conscience  for 
him  to  become  a  party  to  the  contract,  and  it  is  unlawful 
for  him  to  attempt  to  gain  a  benefit  from  such  an  influence 
improperly  exerted. 

A  contract  obtained  by  duress  of  unlawful  imprison- 
ment is  voidable.  And  if  the  imprisonment  is  under  legal 
process  in  regular  form,  it  is  nevertheless  unlawful  as 
against  one  who  procured  it  improperly  for  the  purpose  of 
obtaining  the  execution  of  a  contract;  and  a  contract 
obtained  by  means  of  it  is  voidable  for  duress.  So  it  has 
been  said  that  imprisonment  under  a  legal  process  issued 
for  a  just  cause  is  duress  that  will  avoid  the  contract  if 
such  imprisonment  is  unlawfully  used  to  obtain  the  contract. 
Richardson  v.  Duncan,  3  N.  H.  508. 

It  has  sometimes  been  held  that  threats  of  imprison- 
ment, to  constitute  duress,  must  be  of  unlawful  imprison- 
ment. But  the  question  is  whether  the  threat  is  of  impris- 
onment which  will  be  unlawful  in  reference  to  the  conduct 
of  the  threatener  who  is  seeking  to  obtain  a  contract  by 
his  threat.  Imprisonment  that  is  suffered  through  the 
execution  of  a  threat  which  was  made  for  the  purpose  of 
forcing  a  guilty  person  to  enter  into  a  contract  may  be 
lawful  as  against  the  authorities  and  the  public,  but  unlaw- 
ful as  against  the  threatener,  when  considered  in  reference 
to  his  effort  to  use  for  his  private  benefit  processes  pro- 
vided for  the  protection  of  the  public  and  the  punishment 


199 

of  crime.  One  who  has  overcome  the  mind  and  will  of 
another  for  his  own  advantage,  under  such  circumstances, 
is  guilty  of  a  perversion  and  abuse  of  laws  which  were 
made  for  another  purpose,  and  he  is  in  no  position  to 
claim  the  advantage  of  a  formal  contract  obtained  in  that 
way,  on  the  ground  that  the  rights  of  the  parties  are  to  be 
determined  by  their  language  and  their  overt  acts,  without 
reference  to  the  influences  which  moved  them.  In  such  a 
case,  there  is  no  reason  why  one  should  be  bound  by  a 
contract  obtained  by  force,  which  in  reality  is  not  his  but 
another's. 

We  are  aware  that  there  are  cases  which  tend  to 
support  the  contention  of  the  defendant.  But  we  are  of 
opinion  that  the  view  of  the  subject  heretofore  taken  by 
this  Court,  which  we  have  followed  in  this  opinion,  rests 
on  sound  principles,  and  is  in  conformity  with  most  of 
the  recent  decisions  on  such  cases,  both  in  England  and 
America. 

We  do  not  intimate  that  a  note  given  in  consideration 
of  money  embezzled  from  the  payee  can  be  avoided  on 
the  ground  of  duress,  merely  because  the  fear  of  arrest 
and  imprisonment,  if  he  failed  to  pay,  was  one  of  the 
inducements  to  the  embezzler  to  make  the  note.  But  if  the 
fact  that  he  was  liable  to  arrest  and  imprisonment  is  used 
as  a  threat  to  overcome  his  will  and  compel  a  settlement 
which  he  would  not  have  made  voluntarily,  the  case  is 
different.  The  question  in  every  such  case  is,  whether  his 
liability  to  imprisonment  was  used  against  him  by  way  of  a 
threat,  to  force  a  settlement.  If  so,  the  use  was  improper 
and  unlawful,  and  if  the  threats  were  such  as  would  natu- 
rally overcome  the  mind  and  will  of  an  ordinary  man,  and 
if  they  overcame  his,  he  may  avoid  the  settlement.  The 
rulings  and  refusals  to  rule  were  correct. 

Exceptions  overruled. 


200 

What  constitutes  duress 

GALUSHA  ET  UX.  v.  SHERMAN  ET  AL., 

81  N.  W.  (Wis.)  495  (1900). 

Action  by  D.  H.  Galusha  and  wife  against  Bradley  B. 
Sherman  and  others.  Judgment  for  plaintiffs.  Defendant's 
appeal.    Affirmed. 

Action  in  equity  to  set  aside  a  note  and  mortgage  on 
the  ground  of  duress.  The  issues  made  by  the  pleadings 
sufficiently  appear  from  the  facts  found  by  the  trial  court, 
which  are  in  substance  as  follows :  October  29,  1894,  Brad- 
ley B.  Sherman,  claiming  to  have  been  injured  by  eating 
impure  meat,  believing  it  to  be  wholesome,  which  was  fur- 
nished to  him  for  food  by  D.  H.  Galusha  with  knowledge, 
or  reasonable  means  of  knowledge,  of  its  character,  com- 
menced an  action  against  Galusha  to  recover  compensation 
for  such  injury  to  the  amount  of  $5000.  A.  J.  Sutherland 
was  Sherman's  attorney.  He  employed  J.  H.  Langdon  to 
serve  the  summons  and  complaint,  which  service  he  per- 
formed and  then  advised  Galusha  to  settle  the  claim,  accom- 
panying such  advice  by  an  assertion  that  if  he  did  not  do 
so  he  would  be  prosecuted  criminally  and  sent  to  state's 
prison  for  from  three  to  fourteen  years.  Langdon  induced 
Galusha  to  accompany  him  to  Sutherland's  office,  where  he 
was  induced  to  mortgage  his  farm  for  $1000  to  secure  a 
note  for  that  amount  payable  in  three  years,  with  interest 
thereon  at  the  rate  of  8  per  cent,  per  annum  in  settlement 
of  the  controversy.  Sherman  assigned  the  note  and  mort- 
gage to  Sutherland  and  the  latter  assigned  the  same  to  H.  V. 
Scanlon,  both  assignments  being  recorded  November  5,  1894. 
Galusha  was  a  man  of  little  education  and  experience,  of 
a  nervous  temperament  and  easily  frightened.  The  fact 
that  a  claim  was  made  against  him  for  more  than  he  was 
worth,  accompanied  by  threats  of  imprisonment  for  a  long 
term  of  years  if  he  did  not  settle  it,  deprived  him  of  his 
freedom  of  will,  and  while  he  was  in  that  condition  the  note 
and   mortgage   were   procured.      Such   note   and   mortgage 


201 

were  given  without  consideration.  The  plaintiff,  Henrietta 
Galusha,  signed  the  note  and  mortgage  in  the  absence  of  her 
husband,  and  in  such  a  state  of  fear  and  excitement,  caused 
by  threats  made  to  her,  that  it  was  not  her  voluntary  act. 
The  mortgaged  property  was  worth  $3000.  Defendant 
Scanlon  is  not  the  bona  fide  purchaser  of  the  note  and 
mortgage.  On  such  facts  judgment  was  awarded  to  plain- 
tiffs, declaring  the  note  and  mortgage  null  and  void  and 
requiring  them  to  be  surrendered  for  cancellation,  and  for 
costs  against  defendants.  There  was  evidence  tending  to 
prove  that  at  Sutherland's  office  Galusha  was  locked  in  a 
room  with  Sutherland,  and  there  again  threatened  with 
arrest  and  imprisonment  for  from  three  to  fourteen  years 
if  he  did  not  settle,  and  that  such  threats  were  accompanied 
with  such  demonstrations  on  the  part  of  Sutherland  as  to 
greatly  distract  Galusha  and  put  him  in  fear  of  personal 
violence. 

Marshall,  J.:  It  (duress)  is  a  branch  of  the  law 
that,  in  the  process  of  development  from  the  rigorous  and 
harsh  rules  of  the  ancient  common  law,  has  been  so  softened 
by  the  more  humane  principles  of  the  civil  law  and  of 
equity,  that  the  teachings  of  the  older  writers  on  the  sub- 
ject, standing  alone,  are  not  proper  guides.  The  change 
from  the  ancient  doctrine  has  been  much  greater  in  some 
jurisdictions  than  in  others.  There  are  many  adjudications 
based  on  citations  of  authorities  not  in  themselves  har- 
monious, and  many  statements  in  legal  opinions  based  on 
the  ancient  theory  of  duress,  which  together  create  much 
confusion  on  the  subject,  not  only  as  it  is  treated  by  text 
writers  but  by  judges  in  legal  opinions. 

Anciently,  duress  in  law  by  putting  in  fear  could  exist 
only  where  there  was  such  a  threat  of  danger  to  the  object 
of  it  as  was  deemed  sufficient  to  deprive  a  constant  and 
courageous  man  of  his  free  will,  and  the  circumstances 
requisite  to  that  condition  were  distinctly  fixed  by  law ; 
that  is  to  say,  the  resisting  power  which  every  person  was 
bound  to  exercise  for  his  own  protection  was  measured, 


202 

not  by  the  standard  of  the  individual  affected,  but  by  the 
standard  of  a  man  of  courage ;  and  those  things  which  could 
overcome  a  person,  assuming  that  he  was  a  prudent  and 
constant  man,  were  not  left  to  be  determined  as  facts  in 
the  particular  case,  but  were  a  part  of  the  law  itself.  Co. 
Litt.  253.     *     *     * 

Early  in  the  development  of  the  law,  the  legal  stand- 
ard of  resistance  that  a  person  was  bound  to  exercise 
for  his  own  protection  was  changed  from  that  of  a  con- 
stant or  courageous  man  to  that  of  a  person  of  ordinary 
firmness.  That  will  be  found  by  reference  to  some  of  the 
earlier  editions  of  Chitty  on  Contracts.  See  I  Chit.  Cont. 
(11th  ed.),  p.  272.  But  the  ancient  theory  that  duress  was 
a  matter  of  law  to  be  determined  prima  facie  by  the  exist- 
ence or  non-existence  of  some  circumstance  demand  in  law 
sufficient  to  deprive  the  alleged  wronged  person  of  freedom 
of  will  power,  was  adhered  to  generally,  the  standard  of 
resisting  power,  however,  being  changed,  so  that  circum- 
stances less  dangerous  to  personal  liberty  or  safety  than 
actual  deprivation  of  liberty  or  imminent  danger  of  loss 
of  life  or  limb,  came  to  be  considered  sufficient  in  law  to 
overcome  such  power.  The  oppressive  acts,  though,  were 
still  referred  to  as  duress,  instead  of  the  actual  effect  of 
such  acts  upon  the  will  power  of  the  alleged  wronged 
person.  It  is  now  stated,  oftener  than  otherwise,  in  judicial 
opinions,  that  in  determining  whether  there  was  or  was 
not  duress  in  a  given  case,  the  evidence  must  be  considered, 
having  regard  to  the  assumption  that  the  alleged  oppressed 
person  was  a  person  of  ordinary  courage.  *  *  *  Duress, 
in  its  broad  sense,  now  includes  all  instances  where  a  con- 
dition of  mind  of  a  person,  caused  by  fear  of  personal 
injury  or  loss  of  limb,  or  injury  to  such  person's  property, 
wife,  child,  or  husband,  is  produced  by  the  wrongful  con- 
duct of  another,  rendering  such  person  incompetent  to  con- 
tract with  the  exercise  of  his  free  will  power,  whether 
formerly  relievable  at  law  on  the  ground  of  duress  or  in 
equity  on  the  ground  of  wrongful  compulsion. 


203 

The  making  of  a  contract  requires  the  free  exercise 
of  the  will  power  of  the  contracting  parties,  and  the  free 
meeting  and  blending  of  their  minds.  In  the  absence  of 
that,  the  essential  of  a  contract  is  wanting;  and  if  such 
absence  be  produced  by  the  wrongful  conduct  of  one  party 
to  the  transaction,  or  conduct  for  which  he  is  responsible, 
whereby  the  other  party,  for  the  time  being,  through  fear, 
is  bereft  of  his  free  will  power,  for  the  purpose  of  obtain- 
ing the  contract,  and  it  is  thereby  obtained,  such  contract 
may  be  avoided  on  the  ground  of  duress.  There  is  no 
legal  standard  of  resistance  which  a  party  so  circumstanced 
must  exercise  at  his  peril  to  protect  himself.  The  question 
in  each  case  is,  was  the  alleged  injured  person,  by  being 
put  in  fear  by  the  other  party  to  the  transaction  for  the 
purpose  of  obtaining  an  advantage  over  him,  deprived  of 
the  free  exercise  of  his  will  power,  and  was  such  advantage 
thereby  obtained?  If  the  proposition  be  determined  in  the 
affirmative,  no  matter  what  the  nature  of  the  threatened 
injury  to  such  person,  or  his  property  or  the  person  or 
liberty  of  his  wife  or  child,  the  advantage  thereby  obtained 
cannot  be  retained. 

The  idea  is  that  what  constitutes  duress  is  wholly  a 
matter  of  law  and  is  simply  the  deprivation  by  one  person 
of  the  will  power  of  another  by  putting  such  other  in  fear 
for  the  purpose  of  obtaining,  by  that  means,  some  valuable 
advantage  of  him.  The  means  by  which  that  condition  of 
mind  is  produced  are  matters  of  fact,  and  whether  such 
condition  was  in  fact  produced  is  usually  wholly  a  matter 
of  fact,  though  of  course  the  means  may  be  so  oppressive 
as  to  render  the  result  an  inference  of  law.  It  is  a  mis- 
taken idea  that  what  constitutes  duress  is  different  in  case 
of  an  aged  person  or  a  wife  or  a  child  than  in  the  case 
of  a  man  of  ordinary  firmness.  As  said  in  Wolf  v.  Bluhm 
(95  Wis.  257),  the  condition  of  mind  of  a  person  pro- 
duced by  threats  of  some  kind,  rendering  him  incapable 
of  exercising  his  free  will,  is  what  constitutes  duress.     The 


204 

means  used  to  produce  that  condition,  the  age,  sex,  and 
mental  characteristics  of  the  alleged  injured  party,  are  all 
evidentiary,  merely,  of  the  ultimate  fact  in  issue,  of  whether 
such  person  was  bereft  of  the  free  exercise  of  his  will 
power.  Obviously,  what  will  accomplish  such  result  cannot 
justly  be  tested  by  any  other  standard  than  that  of  the 
particular  person  acted  upon.  His  resisting  power,  under 
all  the  circumstances  of  the  situation,  not  any  arbitrary 
standard,  is  to  be  considered  in  determining  whether  there 
was  duress.  The  more  modern  text  writers  so  state  the 
law  to  be.     *     *     * 

The  true  doctrine  of  duress,  at  the  present  day,  both 
in  this  country  and  England,  is  that  a  contract  obtained 
by  so  oppressing  a  person  by  threats  regarding  his  personal 
safety  or  liberty,  or  that  of  his  property,  or  of  a  member 
of  his  family,  as  to  deprive  him  of  the  free  exercise  of 
his  will  and  prevent  the  meeting  of  minds  necessary  to  a 
valid  contract,  may  be  avoided  on  the  ground  of  duress, 
whether  the  oppression  causing  the  incompetence  to  con- 
tract be  produced  by  what  was  deemed  duress  formerly, 
and  relievable  at  law  as  such,  or  wrongful  compulsion 
remediable  by  an  appeal  to  a  court  of  equity.  The  law 
no  longer  allows  a  person  to  enjoy,  without  disturbance, 
the  fruits  of  his  iniquity,  because  his  victim  was  not  a 
person  of  ordinary  courage ;  and  no  longer  gauges  the  acts 
that  shall  be  held  legally  sufficient  to  produce  duress  by 
any  arbitrary  standard,  but  holds  him  who,  by  putting 
another  in  fear,  shall  have  produced  in  him  a  state  of  mental 
incompetency  to  contract,  and  then  takes  advantage  of 
such  condition,  no  matter  by  what  means  such  fear  be 
caused,  liable  at  the  option  of  such  other  to  make  restitu- 
tion to  him  of  everything  of  value  thereby  taken  from 
him.     *     *     * 

An  arbitrary  rule,  that  a  threatened  lawful  arrest  and 
imprisonment  implying  harsh  or  unreasonable  use  of 
criminal  process,  and  where  no  warrant  has  been  issued 


205 

and  there  is  no  danger  of  the  threat  being  immediately 
carried  out,  is  not  sufficient  to  produce  duress,  seems  un- 
reasonable. Such,  however,  is  the  doctrine  of  the  Supreme 
Court  of  Maine,  and  the  cases  supporting  it  will  be  found 
very  generally  cited  by  text  writers  and  judges.  That  rule 
goes  naturally  with  the  doctrine  that  every  person,  with- 
out regard  to  actual  mental  power,  is  bound  to  come  up  to 
the  standard  of  average  men  in  that  regard  or  suffer  the 
consequences. 


*     *     * 


Judgment  affirmed. 


Chapter  V 
LEGALITY  OF  OBJECT 


Sunday  contracts 

A.  COOK  SONS,  APPELLANT,  v.  J.  B.  FORKER, 

193  Pa.  461  (1899). 

Mitchell,  J. :  The  original  statement  on  the  prom- 
issory notes  having  been  amended,  the  only  form  of  the 
action  with  which  we  are  concerned  is  for  money  had  and 
received. 

Certain  notes  of  one  Weston  were  discounted  by  plain- 
tiffs on  Sunday,  and  a  check  for  the  proceeds  given  by 
plaintiffs  to  defendant  on  the  same  day,  but  dated  as  of 
the  day  following.  The  defendant  indorsed  the  check  on 
the  Sunday  it  was  given,  but  the  money  was  drawn  on  it  by 
the  indorsees  on  the  following  Wednesday.  This  is  the 
money  had  and  received  which  is  the  cause  of  action  de- 
clared upon  in  the  amended  statement.  The  Court  properly 
held  that  there  could  be  no  recovery  on  the  note,  but  the 
action  for  the  money  stands  on  different  ground.  As  to  it 
the  contract  was  not  complete  or  executed  on  Sunday.  Its 
object  on  the  part  of  the  defendant  was  to  obtain  the  money 
on  the  discounted  notes  before  their  maturity,  and  it  was  not 
carried  out  until  the  money  was  obtained.  The  check  in 
the  meantime  was  merely  a  part  of  the  incomplete  Sunday 
agreement,  and  as  such  either  party  could  have  refused  to 
go  further  with  it.  But  when  the  holder  presented  and  the 
plaintiff  paid  it  both  parties  ratified  and  reaffirmed  the 
transaction  with  all  its  consequences.  This  was  done  on  a 
legal  day,  and  made  a  legal  and  binding  loan  of  the 
money.     *     *     * 

Contracts  made  on  Sunday  are  not  void  in  the  sense 
that  they  do  not  admit  of  ratification,  though  so  long  as 

(206) 


207 

they  are  executory  the  law  will  refuse  to  enforce  them : 
Chestnut  v.  Harbaugh,  78  Pa.  473;  and  acts  of  ratification 
will  make  them  new  contracts  which  parties  will  be  bound 
to  perform  :  Uhler  v.  Applegate,  26  Pa.  140.  It  was  accord- 
ingly held  in  the  latter  case  that  an  agreement  made  on 
Sunday  to  extend  the  time  of  payment  of  a  note,  in  consid- 
eration of  the  anticipation  of  part  of  the  amount,  became 
binding  by  the  agreed  prepayment  on  a  legal  day,  Chief 
Justice  Lewis  saying,  "It  is  not  the  intention  of  the  law 
that  its  regard  for  the  Sabbath  day  shall  be  made  the  means 
of  perpetrating  a  fraud."  So  in  Whitmire  v.  Montgomery, 
165  Pa.  253,  a  note  made  and  delivered  on  Sunday  was  held 
to  be  ratified  and  made  good  by  a  subsequent  payment  of 
interest  on  it, 


Buying  stock  on  margin 

HOPKINS,  RECEIVER  OF  LAUGHLIN  AND 
McMANUS,  v.  O'KANE,  APPELLANT, 

169  Pa.  478  (1895). 

Appeal  from  judgment  for  plaintiff. 

Rule  to  open  judgment. 

From  the  depositions  taken  in  support  of  the  rule,  it 
appeared  that  in  November,  1892,  defendant  directed 
Laughlin  and  McManus,  brokers,  to  purchase  two  hundred 
shares  of  Reading  Railroad  stock,  for  which  he  paid  in  full. 
The  brokers  received  and  retained  the  certificate  for  the 
stock,  and  in  December,  1892,  at  defendant's  request,  resold 
the  stock  and  retained  the  proceeds.  Subsequently  defend- 
ant directed  the  brokers  to  purchase  shares  of  a  traction 
company,  and  these  in  turn  were  sold  by  the  brokers,  and 
the  proceeds  retained  by  them.  Similar  transactions  took 
place   until   on   February  28,    1893,   when   defendant  was 


208 

indebted  to  Laughlin  and  McManus  in  the  sum  of  $2000, 
for  which  the  judgment  note  in  suit  was  given.  Judgment 
was  entered  upon  the  note  by  the  receiver  of  the  firm  of 
Laughlin  and  McManus,  and  subsequently  defendant  ob- 
tained a  rule  to  open  the  judgment  on  the  ground  that  the 
debt  grew  out  of  gambling  transactions. 

The  court  discharged  the  rule,  and  defendant  appealed. 

Mitchell,  J. :  There  is  nothing  in  this  case  which 
would  justify  disturbing  the  judgment.  It  ought  not  to  be 
necessary  to  say  again  after  Peters  v.  Grim,  149  Pa.  163, 
and  other  cases,  that  a  purchaser  of  stocks  on  margin  is  not 
necessarily  a  gambling  transaction.  Stocks  may  be  bought 
on  credit,  just  as  flour  or  sugar  or  anything  else,  and  the 
credit  may  be  for  the  whole  price  or  for  a  part  of  it,  and 
with  security  or  without  it.  "Margin"  is  security,  nothing 
more,  and  the  only  difference  between  stocks  and  other  com- 
modities is  that  as  stocks  are  more  commonly  made  the 
vehicle  of  gambling  speculations  than  some  other  things, 
courts  are  disposed  to  look  more  closely  into  stock  transac- 
tions to  ascertain  their  true  character.  If  they  are  real  pur- 
chases and  sales,  they  are  not  gambling  though  they  are 
done  partly  or  wholly  on  credit. 

The  appellant  himself  testified  that  the  first  transaction 
involved  in  this  case  was  his  purchase  of  two  hundred  shares 
of  Reading.  "I  bought  them  outright,"  and  paid  for  them. 
Shortly  afterwards  he  sold  them,  and  on  his  order,  the 
brokers  bought  traction  stock,  and  retained  the  proceeds  of 
the  Reading  as  part  payment  for  it.  The  subsequent  trans- 
actions were  of  the  same  character,  actual  purchases  and 
sales  in  which  the  stocks  bought  were  received  by  the 
brokers  for  defendant,  and  those  sold  delivered  by  them  for 
him  to  the  purchasers.  There  was  all  the  time  on  the 
broker's  book  a  standing  credit  to  appellant  of  the  money 
received  on  his  account  from  the  sale  of  the  Reading  stock, 
and  the  subsequent  debits  and  credits  for  the  later  pur- 


209 

chases  and  sales.     The  account  closed  unfortunately    for 
appellant  with  a  balance  against  him,  but  there  is  no  allega- 
tion, certainly  no  evidence,  that  is  not  correct. 
Judgment  affirmed. 


Interference  with  the  administration  of  the  law 

LINDSAY  v.  SMITH  AND  HOSKINS, 

78  N.  C.  328  (1878). 

Bynum,  J. :  This  is  an  action  for  a  breach  of  cove- 
nant. The  defendants  demur  to  the  complaint,  and  the  facts 
are  these :  On  February  17,  1874,  an  indictment  was  pend- 
ing in  the  Superior  Court  of  Guilford  County,  against 
the  plaintiff,  Lindsay,  for  erecting  and  maintaining  a  public 
nuisance,  by  constructing  a  dam  across  a  certain  creek,  and 
ponding  back  the  water  thereof,  which  thereby  became 
stagnant,  fetid,  and  unwholesome,  to  the  common  nuisance 
of  the  citizens.  That  on  said  February  17th  the  covenant 
sued  on  was  entered  into,  whereby  the  defendants  cove- 
nanted under  the  penalty  sued  for,  to  cut,  maintain  and 

Editor's  Note. — "In  the  first  of  these  cases  we  adopted  the  fol- 
lowing from  the  charge  of  Judge  Hare  in  the  court  below :  'One  who 
should  undertake  to  make  a  bet  or  wager  for  another,  and  advance 
the  money  staked,  would  have  no  right  of  action  against  his  principal 
in  the  event  of  loss.'  In  the  second  we  said :  'As  a  general  rule  money 
loaned  for  the  specific  purpose  that  it  shall  be  used  by  the  borrower 
to  do  an  action  in  violation  of  law,  and  has  been  so  used,  cannot  be 
recovered  back  by  the  lender.  It  is  not  enough  to  defeat  recovery  by 
the  lender  that  he  knew  of  the  borrower's  intention  to  illegally  ap- 
propriate the  loan ;  he  must  know  that  the  borrower  is  purposing  the 
specific  illegal  use,  and  must  be  implicated  as  a  confederate  in  the 
transaction';  Wharton  Cont.  341-2-3.  'Where  stock-jobbing  is  illegal, 
money  lent  for  the  purpose  of  carrying  it  on  cannot  be  recovered, 
supposing  it  was  lent  knowingly  and  with  the  purpose  of  furthering 
the  illegal  act :  Id.  453.  *  *  *  Where  a  man  lends  money  to  an- 
other for  the  express  purpose  of  enabling  him  to  commit  a  specific 
unlawful  act,  and  such  act  be  afterwards  committed  by  means  of  the 
aid  so  received,  the  lender  is  a  particeps  criminis.' " — Brown,  J.,  in 
Freelv  v.  Jacobv,  220  Pa.  609  citing  Fareira  v.  Gabell,  89  Pa.  89 
and  Waugh  v.  Beck,  114  Pa.  422. 


210 

keep  in  repair  a  certain  ditch  through  the  lands  of  the  plain- 
tiff; and  that  the  plaintiff  covenanted  that  when  the  work 
was  done  he  would  pay  the  defendants  $50;  and  it  was 
further  covenanted  as  follows :  "And  it  is  further  agreed 
by  all  the  parties  hereto,  in  consideration  of  the  premises, 
that  the  indictment  now  pending  in  the  Superior  Court  of 
Guilford  County,  against  the  said  Alexander  H.  Lindsay, 
found  at  February  Term,  1873,  shall  be  discontinued  and 
not  proceed,  and  the  prosecution  thereof  stopped  without 
cost  to  the  said  Lindsay."  *  *  *  "And  it  is  further 
agreed  and  understood  by  all  the  parties  hereto,  that  this 
agreement  is  to  be  of  no  binding  force  on  any  of  said 
parties  whose  names  are  signed  hereto,  until  and  unless  the 
indictment  hereinbefore  spoken  of  shall  be  discontinued 
without  cost  to  the  said  Lindsay."  And  this  covenant  is 
signed  by  the  plaintiff  and  defendants. 

Assuming  this  covenant  to  have  been  broken  by  the 
defendants,  do  these  facts  constitute  a  cause  of  action? 

But  the  defendants'  counsel  contends  with  great  in- 
genuity that  there  are  two  covenants  in  this  sealed  instru- 
ment, and  that  they  are  divisible,  part  being  good,  and  part 
bad ;  that  the  contract  of  the  defendants  is  to  do  two  things ; 
first,  to  dismiss  the  indictment,  which  is  illegal  and  void, 
but  second,  to  cut  and  keep  up  the  ditch,  which  is  legal  and 
valid,  and  is  the  contract  for  the  breach  of  which  the  action 
is  brought.  In  regard  to  this  proposition  the  general  rule 
is  that  if  there  are  several  considerations  for  separate  and 
distinct  contracts,  and  one  is  good  and  the  other  bad,  the  one 
may  stand  and  be  enforced,  although  the  other  fails,  under 
the  maxim  "utile  per  inutile  non  vitiatur."  But  where 
there  is  but  one  entire  consideration  for  two  several  con- 
tracts, and  one  of  these  contracts  is  for  the  performance 
of  an  illegal  act,  the  whole  is  void,  as  where  one  sum  is  to 
be  paid  for  the  doing  of  a  legal  and  illegal  act.  Thus,  where 
upon  a  contract  for  the  hiring  and  service  of  a  housekeeper 
at  certain  agreed  wages  it  appears  to  have  been  a  part  of 
the  contract  that  the  housekeeper  should  cohabit  with  her 


211 

master,  the  whole  will  be  void  and  the  wages  irrevocable 
by  her.  Rex  v.  Northingfield,  1  B.  and  Ad.  912.  In  Alex- 
ander v.  Owen,  1  T.  R.  227,  the  case  was  this:  Upon  a 
contract  of  sale  of  tobacco,  it  was  agreed  that  counterfeit 
money  should  be  taken  in  payment,  and  the  tobacco  having 
been  delivered  and  the  counterfeit  money  sent,  the  vendor 
refused  to  receive  it  and  brought  an  action  to  recover  the 
price  of  the  tobacco,  but  the  Court  said  that  the  sale  could 
not  be  held  to  be  good  and  the  payment  bad;  if  it  was  an 
illegal  contract,  it  was  equally  bad  for  the  whole,  and  the 
parties  being  in  pari  delicto,  melior  est  conditio  d<efcndentis. 
Apply  these  principles  to  our  case.  There  was  but  one 
indivisible  consideration  moving  from  the  plaintiff,  to  wit, 
the  sum  of  $50,  and  for  that  consideration  the  defendants 
covenant  to  do  two  things — the  one  legal  and  the  other 
illegal.  The  consideration  cannot  be  divided  and  enough  of 
it  assigned  to  support  the  contract  to  cut  and  maintain  the 
ditch,  but  it,  as  it  were,  per  my  et  per  tout,  enters  into  and 
supports  both  promises. 

But  there  is  another  view  equally  fatal  to  this  action. 
A  part  of  the  covenant  is  in  these  words :  "And  it  is  fur- 
ther agreed  and  understood  by  all  the  parties  hereto,  that 
this  agreement  is  to  be  of  no  binding  force  on  any  of  said 
parties  whose  names  are  signed  hereto,  until  and  unless  the 
indictment  hereinbefore  spoken  of  shall  be  discontinued 
without  cost  to  the  said  Lindsay."  So  the  validity  of  the 
contract  is  expressly  made  to  depend  upon  the  performance 
of  the  very  act  which  makes  it  invalid,  to  wit,  the  dismissal 
of  the  indictment.  The  covenants  were  not  to  be  binding 
until  the  prosecution  had  been  discontinued,  and  the  con- 
tract to  dismiss  it  was  immoral  and  void.  In  such  cases  the 
law  will  leave  the  parties  where  it  finds  them. 

Per  Curiam.    Judgment  affirmed. 


212 

Restraint  of  trade 

COTTINGTON,  APPELLANT,  v.  SWAN, 

RESPONDENT, 

128  Wis.  321  (1906). 

Siebecker,  J. :  The  only  ground  of  objection  urged 
to  the  complaint  is  that  the  contract  upon  which  recovery  is 
claimed  by  the  plaintiff  is  in  restraint  of  trade  and  the  courts 
therefore  will  not  enforce  it  nor  consider  the  question  of 
injury  resulting  from  its  breach.  Contracts  in  restraint  of 
trade  have  been  repeatedly  considered  by  this  court  and 
held  to  be  void  as  against  public  policy,  "unless  limited,  as 
to  time,  space  and  extent  of  trade,  to  what  is  reasonable 
under  the  circumstances  of  the  case,  because  they  tend  to 
deprive  the  public  of  the  services  of  the  persons  in  those 
capacities  in  which  they  are  most  useful,  and  also  tend  to 
expose  the  public  to  the  evils  of  monopoly."  Tecktonius  v. 
Scott,  110  Wis.  441.  Condemnation  of  contracts  of  this 
nature  has  been  quite  universal  by  the  courts,  upon  the 
ground  that  no  person  should  be  permitted  to  so  contract  as 
to  preclude  himself  from  following  a  lawful  occupation  for 
the  benefit  of  himself  and  of  those  dependent  upon  him  or 
to  deprive  the  public  of  his  industry.  The  vital  question  in 
•the  consideration  of  every  such  contract  is  whether  the 
restraint  imposed  is  reasonable  under  the  circumstances  with 
reference  to  "the  situation,  business,  and  objects  of  the 
parties,"  and  if  "the  restraint  contracted  for  appears  to  have 
been  for  a  just  and  honest  purpose,  for  the  protection  of 
the  legitimate  interests  of  the  party  in  whose  favor  it  is 
imposed,  reasonable  as  between  them  and  not  especially 
injurious  to  the  public,  the  restraint  will  be  held  valid." 
Hubbard  v.  Miller,  27  Mich.  15.  In  the  following  cases  in 
this  court  involving  contracts  of  this  kind  the  determination 
rested  upon  these  grounds,  and  if  the  restriction  was  found 
reasonable  and  just  the  contracts  were  sustained  as  valid ;  if 
they  unreasonably  restricted  the  parties  so  as  to  restrain 


213 

them  from  pursuing  their  occupations  or  deprived  the  public 
of  their  industry  they  were  held  invalid.  Kellog  v.  Larkin, 
3  Pin.  123. 

Under  the  contract  in  question  defendant  sold  his  livery 
business  and  its  good  will  to  plaintiff  and  Ackley  for  a 
valuable  consideration  and  agreed  not  to  engage  in  that 
business,  directly  or  indirectly,  in  the  village  of  Bloomer 
while  the  purchasers  or  either  of  them  "or  their  heirs, 
executors  or  administrators  (should)  be  engaged  in  such 
business  within  said  village."  It  is  apparent  that  the 
restraint  contracted  for  was  a  material  consideration  in 
inducing  plaintiff  and  his  associate  to  make  this  purchase 
from  the  defendant  for  the  purpose  of  conducting  a  livery 
business  in  this  village,  and,  under  the  circumstances,  it 
seems  reasonable  to  assume  that  defendant  could  not  have 
secured  the  consideration  obtained  for  such  sale,  but  for 
the  covenant  not  to  engage  in  such  a  business  in  the  village 
of  Bloomer.  That  these  considerations  must  have  entered 
into  the  making  of  this  contract  is  apparent  from  its  terms. 
Are  its  terms  unreasonably  restrictive,  and  is  the  public 
thereby  deprived  of  defendant's  industry?  Manifestly  he 
is  not  precluded  from  pursuing  this  business  anywhere  out- 
side of  this  village,  and  he  may  engage  in  any  other  business 
within  or  outside  of  the  village.  Under  its  terms  the 
village  may  have  this  very  business  continued  within  its 
limits,  for  the  agreement  is  that  he  shall  not  engage  in  it 
so  long  as  it  is  conducted  and  carried  on  by  the  purchasers 
or  their  personal  representatives  or  heirs.  If  they  cease  to 
conduct  this  business  at  any  time,  immediate  or  remote, 
then  defendant  may  conduct  it  without  restraint.  The 
claim  that  such  restraint  would  tend  to  subject  the  public 
of  this  village  to  a  monopoly  in  this  business  as  conducted 
by  plaintiff  is  rather  a  remote  speculation,  for  this  field  of 
enterprise  for  conducting  such  a  business  and  competing 
with  plaintiff  for  the  public  patronage  is  open  to  the  whole 
world.  Viewing  the  restrictive  provision  of  this  contract 
as  applied  to  the  situation  of  the  parties  it  is  manifest 


214 

that  it  was  made  for  the  honest  purpose  of  affording  a 
reasonable  and  fair  protection  to  the  interests  of  the  plaintiff 
in  whose  favor  it  was  made,  and  that  it  was  a  reasonable 
one  as  between  them.  Under  these  circumstances  and  con- 
ditions we  do  not  find  that  the  restriction  imposed  is 
unreasonable  in  its  operation  and  likely  to  cause  injury  to 
the  public,  nor  is  it  an  unreasonable  restraint  upon  defendant 
in  pursuit  of  his  occupation.  This  makes  it  a  valid  contract 
and  entitles  plaintiff  to  relief  if  defendant  has  breached 
it  and  caused  him  injury. 

By  the  Court:  The  order  appealed  from  is  reversed, 
and  the  cause  remanded  with  directions  to  enter  an  order 
overruling  the  demurrer  and  for  further  proceedings  accord- 
ing to  law. 


Restraint  of  trade 
DIAMOND  MATCH  CO.  v.  ROEBER, 

106  N.  Y.  473  (1887). 

Andrews,  J. :  Two  questions  are  presented :  First, 
Whether  the  covenant  of  the  defendant  contained  in  the 
bill  of  sale  executed  by  him  to  the  Swift  and  Courtney  and 
Beecher  Company  on  the  27th  day  of  August,  1880,  "that 
he  shall  and  will  not,  at  any  time  or  times  within  ninety-nine 
years,  directly  or  indirectly,  engage  in  the  manufacture  or 
sale  of  friction  matches  (excepting  in  the  capacity  of 
agent  or  employee  of  said  The  Swift  and  Courtney  and 
Beecher  Company),  within  any  of  the  several  States  of  the 
United  States  of  America,  or  in  the  Territories  thereof,  or 
within  the  District  of  Columbia,  excepting  and  reserving, 
however,  the  right  to  manufacture  and  sell  friction  matches 
in  the  State  of  Nevada  and  in  the  Territory  of  Montana," 
is  void  as  being  a  covenant  in  restraint  of  trade ;  and  second, 
as  to  the  right  of  the  plaintiff,  under  the  special  circum- 


215 

stances,  to  the  equitable  remedy  by  injunction  to  enforce  the 
performance  of  the  covenant.     *     *     * 

The  law  has,  for  centuries,  permitted  contracts  in  par- 
tial restraint  of  trade,  when  reasonable ;  and  in  Horner  v. 
Graves  (7  Bing.  735)  Chief  Justice  Tindal  considered  a 
true  test  to  be  "whether  the  restraint  is  such  only  as  to 
afford  a  fair  protection  to  the  interests  of  the  party  in 
favor  of  whom  it  is  given,  and  not  so  large  as  to  interfere 
with  the  interests  of  the  public."  When  the  restraint  is 
general,  but  at  the  same  time  is  coextensive  only  with  the 
interest  to  be  protected,  and  with  the  benefit  meant  to  be 
conferred,  there  seems  to  be  no  good  reason  why,  as  between 
the  parties,  the  contract  is  not  as  reasonable  as  when  the 
interest  is  partial  and  there  is  a  corresponding  partial 
restraint.  And  is  there  any  real  public  interest  which 
necessarily  condemns  the  one  and  not  the  other?  It  is  an 
encouragement  to  industry  and  to  enterprise  in  building  up 
a  trade,  that  a  man  shall  be  allowed  to  sell  the  good  will  of 
the  business  and  the  fruits  of  his  industry  upon  the  best 
terms  he  can  obtain.  If  his  business  extends  over  a  conti- 
nent, does  public  policy  forbid  his  accompanying  the  sale 
with  a  stipulation  for  restraint  coextensive  with  the  busi- 
ness which  he  sells?  If  such  a  contract  is  permitted,  is  the 
seller  any  more  likely  to  become  a  burden  on  the  public 
than  a  man  who,  having  built  up  a  local  trade  only,  sells 
it,  binding  himself  not  to  carry  it  on  in  the  locality?  Are 
the  opportunities  for  employment  and  for  the  exercise  of 
useful  talents  so  shut  up  and  hemmed  in  that  the  public  is 
likely  to  lose  a  useful  member  of  society  in  the  one  case 
and  not  in  the  other?  Indeed,  what  public  policy  requires 
is  often  a  vague  and  difficult  inquiry.  It  is  clear  that  public 
policy  and  the  interests  of  society  favor  the  utmost  freedom 
of  contract,  within  the  law,  and  require  that  business  trans- 
actions should  not  be  trammeled  by  unnecessary  restrictions. 
"If,"  said  Sir  George  Jessel,  in  Printing  Company  v. 
Sampson,  L.  R.  19  Eq.  Cas.  462,  "there  is  one  thing  more 
than  any  other  which  public  policy  requires,  it  is  that  men 


216 

of  full  age  and  competent  understanding  shall  have  the 
utmost  liberty  of  contracting,  and  that  contracts  when 
entered  into  freely  and  voluntarily,  shall  be  held  good,  and 
shall  be  enforced  by  courts  of  justice."     *     *     * 

The  boundaries  of  the  States  are  not  those  of  trade 
and  commerce,  and  business  is  restrained  within  no  such 
limit.  The  country,  as  a  whole,  is  that  of  which  we  are 
citizens,  and  our  duty  and  allegiance  are  due  both  to  the 
State  and  Nation.  Nor  is  it  true,  as  a  general  rule,  that  a 
business  established  here  cannot  extend  beyond  the  State, 
or  that  it  may  not  be  successfully  established  outside  of  the 
State.  There  are  trades  and  employments  which,  from 
their  nature,  are  localized ;  but  this  is  not  true  of  manu- 
facturing industries  in  general.  We  are  unwilling  to  say 
that  the  doctrine  as  to  what  is  a  general  restraint  of  trade 
depends  upon  State  lines,  and  we  cannot  say  that  the 
exception  of  Nevada  and  Montana  was  colorable  merely. 
The  rule  itself  is  arbitrary,  and  we  are  not  disposed  to  put 
such  a  construction  upon  this  contract  as  will  make  it  a 
contract  in  general  restraint  of  trade,  when  upon  its  face  it 
is  only  partial. 


Editor's  Note. — Later  New  York  cases  hold  that  contracts  in 
restraint  of  trade  throughout  the  whole  country  are  legal  when 
they  operate  simply  to  prevent  a  vendor  of  a  business  from  engaging 
or  competing  with  the  vendee  in  a  business  which  extends  over  the 
whole  country.  Leslie  v.  Lorillard,  110  N.  Y.  519.  Most  of  the 
later  cases  in  other  states  uphold  the  same  doctrine.    9  Cyc.  530. 


Chapter  VI 
SPECIAL  FORMALITY 


NELSON  v.  BOYNTON, 
44  Mass.  396  (1841). 

Assumpsit,  to  recover  the  amount  of  two  promissory 
notes  dated  April  1,  1828,  each  for  $20,  one  payable  in  six 
months  and  the  other  in  twelve  months  from  date,  with 
interest,  after  given  by  the  father  of  the  defendant  to  the 
plaintiff.  In  the  course  of  the  trial  evidence  was  given  that 
the  plaintiff  commenced  suit  against  the  father  of  the 
defendant  on  the  notes  and  attached  his  real  estate ;  that 
the  present  defendant,  while  said  real  estate  was  so  under 
attachment  orally  promised  the  plaintiff  to  pay  the  amount 
of  the  notes  if  the  plaintiff  would  discontinue  his  suit ;  and 
that  the  plaintiff  discontinued  the  same  accordingly.  The 
judge  instructed  the  jury  that  "this  bargain,  if  they  believe 
it  to  have  been  made,  was  an  original  undertaking  by  the 
defendant,  for  new  consideration,  and  was  not  within  the 
statutes  of  frauds."  A  verdict  was  returned  for  the  plaintiff, 
and  the  defendant  alleged  exceptions  to  the  ruling  of  the 
court. 

Shaw,  C.  J. :  Questions  depending  upon  this  branch 
of  the  statute  of  frauds  are  often  attended  with  some  per- 
plexity, on  account  of  the  difference  in  laying  down  a 
general  rule  by  which  to  distinguish  a  guarantee,  a  mere 
collateral  promise  for  the  debt  of  another,  from  the  original 
agreement,  upon  a  new  and  independent  construction,  when 
the  subject  of  the  contract  is  the  debt  or  default  of  another. 

Our  own  statute  is  in  terms  so  nearly  like  the  statute 
22  Car.  11  to  prevent  frauds  and  perjuries,  that  the  Eng- 
lish  authorities   upon   its   construction   are   entitled   to   the 

(217) 


218 

same  consideration  as  upon  questions  of  common  law.  The 
statute,  in  force  when  the  promise  in  question  was  alleged 
to  have  been  made,  was  this:  "No  action  shall  be  brought 
whereby  to  charge  the  defendant  upon  any  special  promise 
to  answer  for  the  debt,  default  or  misdoings  of  another 
person,  unless  an  agreement,  or  some  memorandum  or 
note  thereof  shall  be  in  writing,  and  signed  by  the  party  to 
be  charged  therewith,  or  some  other  person  thereunto  by 
him  lawfully  authorized."    St.  1788,  C.  16,  Sec.  1.     *     *     * 

Some  things  under  the  statute  seem  to  be  well  settled ; 
and  one  is  that  to  bind  one  person  for  the  debt  or  default 
of  another,  there  must  not  only  be  a  promise  or  memoran- 
dum in  writing,  but  such  a  promise  must  be  made  on  good 
consideration.  The  statute  does  not  vary  the  rule  of  com- 
mon law,  as  to  what  constitutes  a  valid  and  binding  promise ; 
to  every  such  promise,  whether  oral  or  written,  there  must 
be  a  good  consideration.  A  promise  without  consideration 
is  bad  by  the  common  law,  as  nudum  pactum;  a  promise  on 
good  consideration,  without  writing,  if  for  the  debt  of 
another,  is  bad  by  the  statute.  To  bind  one  therefor  for 
the  debt  or  default  of  another,  both  must  concur;  first, 
a  promise  on  good  consideration,  and,  secondly,  evidence 
thereof  in  writing.  It  is  not  enough  therefore  that  a  suffi- 
cient legal  consideration  for  a  promise  is  proved,  if  the 
object  of  the  promise  is  the  payment  of  the  debt  of  another, 
for  his  account,  and  not  with  a  view  to  any  benefit  to  the 
promisor.     *     *     * 

In  case  one  says  to  another,  "deliver  goods  to  A,  and 
I  will  pay  you,"  it  is  binding,  though  by  parol,  because  A, 
though  he  receives  the  goods,  is  never  liable  to  pay  for 
them.  But  if,  in  this  same  case,  he  says,  "I  will  see  you 
paid,"  or,  "I  will  pay,  if  he  does  not,"  or  uses  words  equiv- 
alent, showing  that  the  debt  is  in  the  first  instant  the  debt 
of  A.  the  undertaking  is  collateral  and  not  valid,  unless 
in  writing.  Matson  v.  Warham,  2  T.  R.  80.  *  *  *  In 
these  cases  the  same  consideration,  which  is  the  considera- 
tion of  the  promise  of  the  principal  is  a  good  consideration 


219 

for  the  promise  of  the  surety  or  collateral  promisor.  The 
credit  is  given  as  well  upon  the  original  consideration  of 
the  principal,  as  the  collateral  promise  of  the  surety,  and 
is  a  good  consideration  for  both.  *  *  *  The  statute 
of  frauds,  says  Mr.  Justice  Bayley,  in  Edwards  v.  Kelly, 
6  M.  &  S.  209,  as  aimed  at  cases  where  a  debt  being  due 
from  one  person,  another  engaged  to  pay  it  for  him ;  but 
where  one  promised  to  pay  the  debt  of  another  in  order  to 
release  property  in  which  he  or  his  employers  had  an  interest 
— to  extricate  property  subject  to  distress,  on  promising 
to  pay  the  amount  due  it  was  neither  within  the  letter,  or 
the  mischief  of  the  act.  [After  citing  numerous  cases,  the 
Court  continued.] 

The  rule  to  be  derived  from  the  decisions  seems  to  be 
thus:  that  cases  are  not  considered  as  coming  within  the 
statute  when  the  party  promising  has  for  his  object  which 
he  did  not  before  enjoy,  accruing  immediately  to  himself ; 
but  where  the  object  of  the  promise  is  to  obtain  the  release 
of  the  person  or  property  of  the  debtor,  or  other  forbear- 
ances of  benefit  to  him,  it  is  within  the  statute.  In  the  case 
of  Fish  v.  Hutchinson,  2  Wils.  94,  the  plaintiff  had  sued 
a  third  person,  and  the  defendant,  in  consideration  that  he 
would  stay  his  action,  promised  to  pay;  the  original  debt 
still  subsisting.  It  was  held  that  it  was  promise  for  the 
debt  of  another  and  within  the  statute.  So  in  Jackson  v. 
Rayner,  12  John's  291,  where  the  plaintiff  had  sued  the 
defendant's  son,  although  the  defendant  stated  at  the  same 
time  that  he  had  taken  the  son's  property  and  meant  to 
pay  his  debts,  it  was  held  not  binding  without  a  promise 
in  writing.     *     *     * 

Under  the  circumstances  the  Court  are  of  opinion  that 
the  promise  was  within  the  statute  of  frauds;  a  promise  to 
pay  the  debt  of  the  father,  and  therefore,  though  made  on 
good  consideration,  was  not  valid  without  a  promise  or 
memorandum  of  the  agreement  in  writing.  For  although 
the  effect  of  the  discontinuance  of  the  action  was  to  dis- 
charge the  attachment,  yet  that  was  incidental  only,  and 


220 

the  leading  object  and  purpose  were  the  relief  and  benefit 
of  the  father,  and  not  of  the  son.  It  does  not  appear  that 
the  son  had  any  interest  in  the  estate  released,  or  object 
or  purpose  of  his  own  to  subserve.  It  is  the  ordinary  case 
of  a  son  becoming  surety  for  the  father's  debt,  in  considera- 
tion of  surceasing  a  suit  or  other  forbearance,  and  there- 
fore, not  being  in  writing,  is  within  the  statute.  And, 
although  the  forbearance  would  be  a  good  consideration 
for  such  a  promise,  they  proved  to  be  written  evidence, 
yet  the  consideration  was  not  of  such  a  character  as  to 
constitute  a  new  and  original  transaction  between  these 
parties. 

The  Court  below  having  expressed  a  different  opinion, 
and  instructed  the  jury  that  this  bargain,  if  they  found  it 
had  been  so  made,  was  an  original  undertaking  by  the  de- 
fendant, for  a  new  consideration,  and  was  not  therefore 
within  the  statute  of  frauds,  and  also  that,  notwithstanding 
the  notes  were  not  given  up,  nor  the  father  discharged, 
still  the  Court  decided,  if  there  was  a  consideration  for  the 
promise,  that  the  promise  need  not  be  in  writing;  this  Court 
are  of  the  opinion  that  the  verdict  rendered  for  the  plain- 
tiff, in  pursuance  of  these  instructions,  must  be  set  aside 
and  a  new  trial  granted. 

Verdict  set  aside  and  a  new  trial  granted. 


PART  II 

OPERATION  OF  CONTRACT 


Chapter  VII 
PRIVITY  OF  CONTRACTS 


Privity — Lacking 

BOSTON  ICE  CO.  v.  POTTER, 

123  Mass.  28  (1877). 

Contract  on  an  account  annexed  for  ice  sold  and  de- 
livered. 

The  judge  found  that  the  plaintiff  could  not  maintain 
this  action.     Plaintiff  alleged  exceptions. 

Endicott,  J. :  To  entitle  the  plaintiff  to  recover  it 
must  show  some  contract  with  the  defendant.  There  was 
no  express  contract  and  upon  the  facts  stated  no  contract 
is  to  be  implied.  The  defendant  had  taken  ice  from  the 
plaintiff  in  1873,  but,  on  account  of  some  dissatisfaction  with 
the  manner  of  supplying,  he  terminated  his  contract,  and 
made  a  contract  for  his  supply  with  the  Citizens'  Ice  Com- 
pany. Plaintiff  afterward  delivered  ice  to  the  defendant 
for  one  year  without  notifying  the  defendant,  as  the  pre- 
siding judge  has  found,  that  it  had  bought  out  the  business 
of  the  Citizens'  Ice  Company,  until  after  the  delivery  and 
consumption  of  ice.  The  presiding  judge  has  decided  that 
the  defendant  had  a  right  to  assume  that  the  ice  in  ques- 
tion was  delivered  by  the  Citizens'  Ice  Company,  and  has 
thereby  necessarily  found  that  the  defendant's  contract  with 
that  company  covered  the  time  of  the  delivery  of  the  ice. 

(221) 


222 

There  was  no  privity  of  contract  established  between 
the  plaintiff  and  defendant,  and  without  such  privity  the 
possession  and  use  of  the  property  will  not  support  an 
implied  assumpsit.  Hill  v.  Snell,  104  Mass.  173.  *  *  * 
No  presumption  of  assent  can  be  implied  from  the  reception 
and  use  of  the  ice,  because  the  defendant  had  no  knowl- 
edge that  it  was  furnished  by  the  plaintiff,  but  supposed 
that  he  had  received  it  under  the  contract  made  with  the 
Citizens'  Ice  Company.  Of  this  change  he  was  entitled  to 
be  informed. 

A  party  has  a  right  to  select  and  determine  with  whom 
he  will  contract,  and  cannot  have  another  person  thrust 
upon  him  without  his  consent.  It  may  be  of  importance 
to  him  who  performs  the  contract,  as  when  he  contracts 
with  another  to  paint  a  picture,  or  write  a  book,  or  furnish 
articles  of  a  particular  kind,  or  when  he  relies  upon  the 
character  or  qualities  of  an  individual,  or  has,  as  in  this 
case,  reasons  why  he  does  not  wish  to  deal  with  a  particular 
party.  In  all  these  cases,  as  he  may  contract  with  whom  he 
pleases,  the  sufficiency  of  his  reason  for  so  doing  cannot 
be  inquired  into.  If  the  defendant,  before  receiving  the 
ice  or  during  its  delivery,  had  received  notice  of  the  change, 
and  that  the  Citizens'  Ice  Company  could  no  longer  perform 
its  contract  with  him,  it  would  then  have  been  an  undoubted 
right  to  have  rescinded  the  contract  and  to  decline  to  have 
it  executed  by  the  plaintiff.  But  this  he  was  unable  to  do, 
because  the  plaintiff  failed  to  inform  him  of  that  which  he 
had  a  right  to  know.  Orcutt  v.  Nelson,  1  Gray  536.  *  *  * 
If  he  had  received  notice  and  continued  to  take  the  ice  as 
delivered  a  contract  would  be  implied.  Mudge  v.  Oliver,  1 
Allen  74. 

There  are  two  English  cases  very  similar  to  the  case 
at  bar.  In  Schmaling  v.  Thomlinson,  60  Tunt.  147,  a  firm 
was  employed  by  the  defendants  to  transport  goods  to  a 
foreign  market,  and  transferred  the  entire  employment  to 
the  plaintiff,  who  performed  it  without  the  privity  of  the 
defendant,  and  it  was  held  that  he  could  not  recover  com- 


223 

pensation  for  his  services  from  the  defendants.  The  case 
of  Bolton  v.  Jones,  2  H.  and  N.  564,  was  cited  by  both 
parties  to  the  argument.  There  the  defendant,  who  had 
been  in  the  habit  of  dealing  with  one  Brockelhurst,  sent  a 
written  order  to  him  for  goods.  The  plaintiff,  who  had 
on  the  same  day,  bought  out  the  business  of  Brockelhurst, 
executed  the  order  without  giving  the  defendant  notice 
that  the  goods  were  supplied  by  him  and  not  by  Brockel- 
hurst, and  it  was  held  that  the  plaintiff  did  not  maintain 

an  action  for  the  price  of  goods  against  the  defendant. 

*     *     * 

The  implied  assumpsit  arises  upon  the  dealings  between 
the  parties  of  the  action  and  cannot  arise  from  the  dealings 
between  the  defendant  and  the  original  contractor  to  which 
the  plaintiff  was  not  a  party. 

Exceptions  overruled. 


Privity — Lacking 

SARAH    MELLEN,   ADMINISTRATRIX,   v.   SHILO- 
METH  S.  WHIPPLE, 

1  Gray  (Mass.)  317  (1854). 

Action  of  contract,  brought  by  the  administratrix  of 
Michael  Mellen,  on  December  20,  1851.  The  declaration 
avers  that  "the  defendant  is  indebted  to  the  plaintiff  for 
the  following  cause  of  action:  On  June  1,  1844,  one 
John  M.  Rollins,  for  a  good  and  sufficient  consideration, 
made  and  delivered  to  Charles  Ellis  and  John  M.  Mayo 
(then  partners  under  the  firm  of  Ellis  &  Mayo),  his  note 
for  the  sum  of  $500,  payable  to  said  Ellis  &  Mayo  or  order 
in  three  years  from  date,  with  interest  thereon  at  the  rate 
of  6  per  cent,  per  annum,  payable  semi-annually;  and  also 
made  to  said  payees,  to  hold  to  themselves,  their  heirs  and 
assigns,  as  security  for  the  payment  of  said  note,  a  mort- 


224 

gage  deed  of  the  same  date,  of  a  certain  lot  of  land  situated 
at  the  corner  of  Curve  Street  and  Harrison  Avenue,  in 
Boston,  and  more  particularly  described  in  said  deeds. 
Said  John  M.  Rollins  afterward,  to  wit,  on  April  8,  1845, 
by  his  deed  of  that  date,  conveyed  the  equity  of  redemption 
of  said  estate  to  Shilometh  S.  Whipple,  the  defendant; 
and  said  deed  contained  the  following  clause :  'The  said 
granted  premises  are  subject  to  a  mortgage  for  $500  with 
interest ;  said  interest  payable  semi-annually ;  which  mort- 
gage, with  the  note  for  which  it  was  given,  the  said  Whip- 
ple is  to  assume  and  cancel.'  Said  Whipple  accepted  said 
deed,  entered  upon  the  said  estate,  and  paid  the  interest 
on  said  note  to  the  said  mortgagees  and  their  assigns  to 
June  1,  1848;  and  said  Michael  Mellen,  the  plaintiff's 
intestate,  in  his  lifetime  became,  by  regular  assignment, 
transfer,  endorsement  and  delivery,  for  valuable  considera- 
tion, possessed  of  said  mortgage  and  the  note  for  $500 
secured  thereby ;  and  said  Whipple  became  by  law  indebted 
to  said  intestate  in  the  amount  of  said  note ;  and  said 
Michael  Mellen  is  since  deceased,  and  the  plaintiff  was  duly 
appointed  administratrix  of  his  estate ;  and  the  said  Whip- 
ple is  now  justly  indebted  to  the  plaintiff  for  the  amount  of 
said  note  of  $500  and  interest  thereon  from  June  1,  1848; 
and  promised  the  plaintiff  to  pay  the  same ;  yet,  though 
often  requested  has  not  paid  the  same."  To  this  declara- 
tion the  defendant  demurs,  "and  alleges  and  assigns  for 
cause  of  this  demurrer,  that  the  declaration  does  not  suffi- 
ciently set  forth  any  legal  cause  of  action." 

Metcalf,  J. :  *  *  *  The  general  rule  is,  and  always 
has  been,  that  a  plaintiff,  in  an  action  on  a  simple  contract, 
must  be  the  person  from  whom  the  consideration  of  the 
contract  actually  moved,  and  that  a  stranger  to  the  con- 
sideration cannot  sue  on  the  contract.  The  rule  is  some- 
times thus  expressed.  There  must  be  a  privity  of  contract 
between  the  plaintiff  and  defendant,  in  order  to  render  the 
defendant  liable  to  an  action  by  the  plaintiff  on  the  con- 
tract.   Crow  v  Rogers,  1  Stra.  592. 


225 

Indebitatus  assumpsit,  for  money  had  and  received  can 
be  maintained,  in  various  instances,  where  there  is  no  actual 
privity  of  contract  between  the  plaintiff  and  defendant, 
and  where  the  consideration  does  not  move  from  the  plain- 
tiff. In  some  actions  of  this  kind  a  recovery  has  been  had, 
where  the  promise  was  to  a  third  person  for  the  benefit  of 
the  plaintiff;  such  action  being  an  equitable  one  that  can 
be  supported  by  showing  that  the  defendant  has  in  his 
hands  money  which,  in  equity  and  good  conscience,  belongs 
to  the  plaintiff,  without  showing  a  direct  consideration 
moving  from  him,  or  a  privity  of  contract  between  him 
and  the  defendant. 

Most  of  the  cases  in  this  first  class  are  those  in  which 
A.  has  put  money  or  property  into  B.'s  hands  as  a  fund 
from  which  A.'s  creditors  are  to  be  paid,  and  B.  has  prom- 
ised, either  expressly  or  by  implication  from  his  acceptance 
of  the  money  or  property  without  objection  to  the  terms  on 
which  it  was  delivered  to  him,  to  pay  such  creditors.  In 
such  cases  the  creditors  have  maintained  actions  against 
the  holder  of  the  fund.  Disborn  v.  Denaby,  1  D'Anv.  Ab. 
64.  On  close  examination  the  case  of  Carnegie  and  Another 
v.  Morrison  and  Another,  2  Met.  381,  will  be  found  to 
belong  to  the  same  class.  The  Chief  Justice  there  said : 
"Bradford  wis  indebted  to  the  plaintiffs,  and  was  desirous 
of  paying  them.  He  had  funds,  either  in  cash  or  credit, 
with  the  defendants,  and  entered  into  a  contract  with  them 
to  pay  a  sum  of  money  for  him  to  the  plaintiffs.  And  upon 
the  faith  of  that  undertaking  he  forbore  to  adopt  other 
measures  to  pay  the  plaintiff's  debt." 

By  the  recent  English  decisions,  however,  one  to  whom 
money  is  transmitted,  to  be  paid  to  a  third  person,  is  not 
liable  to  an  action  by  that  person,  unless  he  has  agreed  to 
hold  it  for  him.  And  such  was  the  opinion  of  Spencer,  J., 
in  Weston  v.  Barker,  12  Johns  282. 

Cases  where  promises  have  been  made  to  a  father  or 
uncle,  for  the  benefit  of  a  child  or  nephew,  form  a  second 
class,  in  which  the  person  for  whose  benefit  the  promise 


226 

was  made  has  maintained  an  action  for  the  breach  of  it. 
The  nearness  of  the  relation  between  the  promisee  and 
him  for  whose  benefit  the  promise  was  made,  has  been 
sometimes  assigned  as  a  reason  for  these  decisions.  And 
though  different  opinions,  both  as  to  the  correctness  of  the 
decisions,  and  as  to  this  reason  for  them,  have  often  been 
expressed  by  English  judges,  yet  the  decisions  themselves 
have  never  been  overruled,  but  are  still  regarded  as  settled 
law.  Dutton  v.  Pool,  1  Vent.  318,  is  a  familiarly  known 
case  of  this  kind,  in  which  the  defendant  promised  a  father, 
who  was  about  to  fell  timber  for  the  purpose  of  raising  a 
portion  for  his  daughter,  that  if  he  would  forbear  to  fell 
it  the  defendant  would  pay  the  daughter  £1000.  The  daugh- 
ter maintained  an  action  on  this  promise.  Several  like  de- 
cisions had  been  previously  made.     *     *     * 

The  defendant  has  no  money  which  in  equity  and  good 
conscience  belongs  to  the  plaintiff.  No  funds  of  Rollins', 
either  in  money,  property  or  credit,  have  been  put  into  the 
defendant's  hands  for  the  purpose  of  meeting  the  plaintiff's 
claim  on  Rollins.  The  sale  of  the  equity  of  redemption  to 
the  defendant  did  not  lessen  the  plaintiff's  security  for  the 
mortgage  debt  which  Rollins  owed  her  intestate,  for  that 
equity  could  not  have  been  taken  toward  payment  of  that 
debt.  Atkins  v.  Sawyer,  1  Pick.  351.  There  was  no  near- 
ness of  relation  between  Rollins  and  the  plaintiff's  intestate. 
Nor  has  the  defendant  had  the  use  and  occupation  of  the 
land  of  the  plaintiff  or  of  her  intestate  under  a  promise  or 
under  any  legal  liability  to  pay  rent  for  it.     *     *     * 

There  was  no  privity  of  contract  between  the  plain- 
tiff's intestate  and  the  defendant,  nor  did  the  consideration 
of  the  defendant's  promise  move  from  her  intestate.  Rol- 
lins sold  only  an  equity  of  redemption  to  the  defendant, 
leaving  the  estate  in  fee  in  the  mortgagee.  The  stipulation 
in  the  deed  of  the  equity,  that  the  defendant  should  pay 
the  mortgage  notes,  was  a  matter  exclusively  between  the 
two  parties  to  that  deed,  and  is  nothing  more  than  the  law 
would   require   of   the   defendant   in   order   that  he   might 


227 

derive  any  benefit  from  his  purchase  of  the  equity.  The 
plaintiff  still  has  the  estate  and  also  Rollins'  personal  re- 
sponsibility to  secure  the  mortgage  debt. 

Editor's  Note. — rights  of  third  party. — The  rights  of  third 
parties,  like  their  liabilities,  cannot  as  a  rule  be  projected  into  con- 
tracts to  which  they  are  not  parties.  This  is  the  common  law  rule 
adhered  to  in  England,  and  followed  by  Massachusetts,  Michigan, 
and  some  other  States,  but  a  different  rule,  which  is  followed  in 
most  of  the  States,  was  adopted  in  New  York  nearly  a  century  ago. 

1.  A  makes  a  contract  with  B  by  the  terms  of  which  he  is 
to  pay  a  certain  sum  of  money  to  X,  who  is  not  a  party  to  the 
contract  and  knows  nothing  about  it  at  the  time.  When  X  learns 
of  this  arrangement,  may  he  enforce  the  payment  from  A?  At 
common  law  he  cannot ;  according  to  the  English  rule,  which  has 
followed  the  common  law,  he  cannot;  the  New  York  rule  permits 
him  to  recover  in  certain  cases. 

2.  H  made  a  loan  of  $300  to  F,  stating  at  the  time  that  he 
owed  the  amount  to  L.  F,  in  consideration  of  the  loan,  promised 
to  pay  the  amount  to  L  on  the  following  day.  He  failed  to  pay 
according  to  promise,  and  L  sued  him  upon  the  promise  to  H.  Under 
the  New  York  rule  L  may  recover,  but  the  operation  of  the  rule 
is  limited  to  cases  where  there  is  a  debt  or  duty  owing  by  the 
promisee  to  the  third  party  claiming  under  the  promise. 

Reasons  for  the  New  York  rule:  (1)  It  avoids  a  multiplicity 
of  suits.  In  the  illustration  given,  if  L  is  obliged  to  bring  an  action 
against  H,  the  latter  would  have  to  sue  F  in  order  to  recover  the 
amount.  (2)  It  avoids  the  delays  and  costs  incident  to  a  number 
of  suits.  (3)  It  gives  the  right  of  action  to  the  person  who  is 
most  directly  interested  in  enforcing  the  agreement.  He  is  the 
direct  beneficiary,  and  the  one  upon  whom  the  greatest  hardship 
would  fall  in  the  event  of  non-payment.  (4)  The  right  may  be 
said  to  rest  on  an  implied  relation  of  agency  between  the  third 
party  and  the  person  making  the  contract  in  his  favor,  which  is 
subsequently  validated  by  a  ratification  on  the  part  of  the  third 
party  acting  as  principal.  Since  the  act  of  the  agent  is  the  act 
of  the  principal,  this  gives  the  third  party  a  right  of  action  upon 
a  contract  made  for  his  benefit. 

3.  W  contracted  with  P  to  sell  and  transfer  to  the  latter 
all  of  its  property  and  contracts,  the  transfer  to  be  made  on  a  certain 
date  when  the  selling  corporation  was  to  be  dissolved.  It  was  pro- 
vided in  the  agreement  that  P  was  to  settle  and  discharge  all 
the  liabilities  of  W,  existing  at  the  time  of  the  merger.  Among 
these  was  the  claim  of  B  amounting  to  more  than  four  thousand 
dollars.  B  sued  on  the  promise.  Held:  That  B  should  recover; 
that  while  the  primary  purpose  of  such  provision  may  have  been 
for  the  benefit  of  the  selling  company,  it  was  also  incidentally 
intended  for  the  benefit  of  its  creditors,  and  that  a  creditor  of  the 
former  company  could  enforce  such  provision  against  the  promisor 
as  one  made  for  its  benefit.  Baker  v.  Pullman  Car  Company,  124 
Federal  555   (1903). 


Chapter  VIII 
ASSIGNMENT 


Assignment  of  rights  and  duties 

SAMUEL  GALEY,  FOR  USE  OF  A.  G.  AND  J.  H. 
SMITH,  CO-PARTNERS,  TRADING  AS  SMITH 
BROTHERS,  v.  W.  L.   MELLON,  APPELLANT, 

172  Pa.  443  (1896). 

Assumpsit  on  a  contract  for  drilling  an  oil  well. 

At  the  trial  it  appeared  that  on  April  1,  1893,  W.  L. 
Mellon,  of  Pittsburgh,  contracted  in  writing  with  Samuel 
Galey  to  drill  a  well  for  oil  or  gas  on  a  farm  in  Washington 
County.  By  the  terms  of  the  contract  Galey  was  to  furnish 
all  tools,  cables,  etc.,  at  his  own  expense  and  risk,  and  the 
fuel,  labor  and  hauling  required  in  completing  the  well,  and 
case  it  dry  of  water.  Mellon  was  to  furnish  wood,  rig, 
casing,  machinery  and  water,  and  pay  90  cents  per  foot  for 
the  drilling.  On  the  same  day  the  contract  was  made, 
Galey,  in  consideration  of  $180,  made  a  parol  assignment 
thereof  to  Smith  Bros.,  the  appellees,  and  Smith  Bros.,  who 
were  experienced  contractors  and  drillers,  did  the  work 
under  the  contract.  Smith  Bros,  were  not  sub-contractors. 
Defendant  claimed  that  one  of  the  wells  drilled  was  defect- 
ive, owing  to  the  neglect  or  incapacity  of  Smith  Bros.' 
superintendent,  and  that  Galey  had  no  right  to  assign  the 
contract  to  Smith  Bros. 

Defendant's  points  were  as  follows: 

1.  That  there  is  no  privity  of  contract  in  this  case 
between  the  use  plaintiffs  and  the  defendant  arising  out  of 
any  assignment,  legal  or  equitable,  of  the  contract  made  by 
Galey  with  Mellon,  and  the  use  plaintiffs  are  not  entitled  to 

(228) 


229 

recover  upon  said  contract,  and  the  verdict  of  the  jury  must 
be  for  the  defendant.    Answer:  Refused.     (1)     *     *     * 

4.  That  the  contract  made  by  Mellon  with  Galey  was 
for  the  personal  services  of  Galey  in  the  drilling  of  McCarty 
No.  3,  and  were  not  assignable,  and  the  fact  that  the  use 
plaintiffs  in  this  case  drilled  the  said  well  under  an  arrange- 
ment made  by  them  with  Galey  gives  them  no  right  of  action 
upon  the  Galey  contract  against  Mellon.    Answer:  Refused. 

(4.) 

Fell,  J.:  This  action  is  founded  upon  a  contract  tor 
drilling  an  oil  well.  The  personal  performance  of  the  work 
by  the  legal  plaintiff  could  not  have  been  contemplated  by 
the  parties  at  the  time  the  contract  was  made.  The  work  of 
necessity  required  the  labor  and  attention  of  a  number  of 
men,  and  it  does  not  appear  that  because  of  his  knowledge, 
experience  or  pecuniary  ability,  or  for  any  other  reason, 
Galey  was  especially  fitted  to  carry  it  on.  There  is  nothing 
of  a  personal  nature  about  it,  and  its  personal  performance 
by  him  was  not  the  inducement  nor  of  the  essence  of  the 
contract.  The  contract  was  assigned  to  Smith  Bros.,  the 
use  plaintiffs,  and  the  work  under  it  was  done  by  them  with 
the  knowledge  of  the  defendants  from  the  beginning.  The 
jury  found  that  they  were  not  sub-contractors  suing  upon 
a  contract  as  to  which  they  had  no  rights.  It  was  compe- 
tent for  Galey  to  assign  to  them  the  executory  contract  with 
all  of  his  rights  under  it,  or  after  the  completion  of  the  work 
to  assign  to  them  the  right  to  receive  the  amount  due  on 
settlement.  In  either  event  they  had  the  right  to  use  his 
name  as  legal  plaintiff,  but  in  neither  would  their  rights  rise 
higher  than  his.  The  action  was  tried  on  the  right  of  the 
legal  plaintiff  to  recover,  the  doors  were  opened  to  every 
defense  available  against  him,  and  in  no  aspect  of  the  case 
was  the  defendant  prejudiced  because  of  the  form  of  the 

action. 

Practically  the  question  at  the  trial  was  whether  the 
legal  plaintiff  was  entitled  to  recover  on  the  contract,  and 
that  depended  upon  whether  the  fault  which  ultimately  re- 


230 

suited  in  the  destruction  of  one  of  the  wells  was  chargeable 
to  the  defendant's  field  superintendent.  The  jury  found 
that  it  was,  and  they  had  the  aid  of  a  charge  by  the  learned 
trial  judge  which  fully  and  clearly  explains  the  facts  and  the 
law  applicable  to  them. 

The  judgment  is  affirmed. 


Assignment  of  proceeds 

JAMES  v.  CITY  OF  NEWTON  &  ANOTHER, 

142  Mass.  366  (1886). 

This  was  a  bill  in  equity  against  the  City  of  Newton 
for  $600  which  had  been  assigned  to  the  plaintiff  by  one 
Stewart  who  had  a  claim  against  the  City  for  money  due. 
The  $600  was  a  part  of  said  money  due,  the  balance  having 
been  assigned  to  one  Gilkey  by  Stewart.  The  City  of  New- 
ton in  its  answer  admitted  that  it  had  in  its  hands  $600  due 
on  account  of  this  contract  and  stated  that  it  was  willing  to 
pay  said  balance  to  such  person  or  persons  as  should  be 
justly  entitled  to  receive  the  same. 

Field,  J. :  The  assignment  in  this  case  is  a  formal 
assignment,  for  value,  of  "the  sum  of  six  hundred  dollars 
now  due  and  to  become  due  and  payable  to  me"  from  the 
City  of  Newton,  under  and  by  virtue  of  a  contract  for 
building  a  grammar  school  house,  and  it  is  agreed  that 
this  sum  "shall  be  paid  out  of  the  money  reserved  as  a 
guaranty  by  said  city,"  and  the  assignee  is  empowered  "to 
collect  the  same."  There  is  no  doubt  that  it  would  operate 
as  an  assignment  to  the  extent  of  $600.  if  there  can  be  an 


Editor's  Note. — A  liability  may  be  assigned  with  the  consent  of 
the  party  entitled,  but  this  is  in  effect  the  rescission,  by  agreement, 
of  one  contract  and  the  substitution  of  a  new  one  in  which  the 
same  acts  are  to  be  performed  by  different  parties. 

Or  again,  if  A  undertakes  to  do  work  for  X  which  needs  no 
special  skill,  and  it  does  not  appear  that  A  has  been  selected  with 
reference  to  any  personal  qualification,  X  cannot  complain  if  A  gets 
the  work  done  by  an  equally  competent  person.  But  A  does  not 
cease  to  be  liable  if  the  work  is  ill  done,  nor  can  any  one  but  A 
sue  for  payment.     Devlin  v.  Mayor,  63  N.  Y.  8. 


231 

assignment,  without  the  consent  of  the  debtor,  of  a  part 
of  a  debt  to  become  due  under  an  existing  contract ;  and 
the  cases  that  hold  that  an  order  drawn  on  a  general  or  a 
particular  fund  is  not  an  assignment  pro  tanto,  unless  it 
is  accepted  by  the  person  on  whom  it  is  drawn,  need  not 
be  noticed.  That  a  court  of  law  could  not  recognize  and 
enforce  such  an  assignment,  except  against  the  assignor  if 
the  money  came  into  his  hands,  is  conceded.  The  assignee 
could  not  sue  at  law  in  the  name  of  the  assignor,  because 
he  is  not  an  assignee  of  the  whole  of  the  debt.  He  could 
not  sue  at  law  in  his  own  name,  because  the  City  of  Newton 
has  not  promised  him  that  it  will  pay  him  $600.  The  $600 
is  expressly  made  payable  "out  of  money  reserved  as  a 
guaranty  by  said  city ;"  and,  by  the  contract,  the  balance 
reserved  was  payable  as  one  entire  sum,  and  at  law  a  debtor 
cannot  be  compelled  to  pay  an  entire  debt  in  parts,  either 
to  the  creditor  or  to  an  assignee  of  the  creditor,  unless  he 
promises  to  do  so.  Courts  of  law  originally  refused  to 
recognize  any  assignments  of  choses  in  action  made  without 
the  assent  of  the  debtor,  but  for  a  long  time  they  have 
recognized  and  enforced  assignments  if  the  whole  of  the 
debt,  by  permitting  the  assignee  to  sue  in  the  name  of  the 
assignor,  under  an  implied  power,  which  they  hold  to  be 
irrevocable.  Partial  assignments  such  courts  have  never 
recognized,  because  they  hold  that  an  entire  debt  cannot 
be  divided  into  parts  by  the  creditor  without  the  consent  of 
the  debtor.     *     *     * 

It  is  said  that,  in  equity,  there  may  be,  without  the 
consent  of  the  debtor,  an  assignment  of  a  part  of  an  entire 
debt.  It  is  conceded  that  as  between  assignor  and  assignee, 
there  may  be  such  an  assignment.  The  law  that,  if  the 
debtor  assents  to  the  assignment  in  such  a  manner  as  to 
imply  a  promise  to  the  assignee  to  pay  to  him  the  sum 
assigned,  then  the  assignee  can  maintain  an  action,  rests 
upon  the  theory  that  the  assignment  has  transferred  the 
property  in  the  sum  assigned  to  the  assignee  as  the  consid- 
eration of  the  debtor's  promise  to  pay  the  assignee,  and  that 


232 

by  this  promise  the  indebtedness  to  the  assignor  is  pro  tanto 
discharged.  It  has  been  held,  by  courts  of  equity  which 
have  hesitated  to  enforce  partial  assignments  against  the 
debtor,  that  if  he  brings  a  bill  of  interpleader  against  all 
the  persons  claiming  the  debt  or  fund,  or  parts  of  it,  the 
rights  of  the  defendants  will  be  determined  and  enforced, 
because  the  debtor,  although  he  has  not  expressly  promised 
to  pay  the  assignees,  yet  asks  that  the  fund  be  distributed 
or  the  debt  paid  the  different  defendants  according  to  their 
rights  as  between  themselves ;  and  the  rule  against  partial 
assignments  was  established  for  the  benefit  of  the  debtor. 
Public  Schools  v.  Heath,  2  McCarter  22.      , 

In  many  jurisdictions,  courts  of  equity  have  gone 
farther,  and  have  held  that  an  assignment  of  a  part  of  a 
fund  or  debt  may  be  enforced  in  equity  by  a  bill  brought  by 
the  assignee  against  the  debtor  and  assignor  while  the  debt 
remains  unpaid.  The  procedure  in  equity  is  adapted  to 
determining  and  enforcing  all  the  rights  of  the  parties,  and 
the  debtor  can  pay  the  fund  or  debt  into  court,  have  his 
costs  if  he  is  entitled  to  them,  and  thus  be  compensated 
for  any  expense  or  trouble  to  which  he  may  have  been  put 
by  the  assignment.  But  some  courts  in  equity  have  gone 
still  farther,  and  have  held  that,  after  notice  of  a  partial 
assignment  of  a  debt,  the  debtor  cannot  rightfully  pay  the 
sum  assigned  to  his  creditor,  and,  if  he  does,  that  this  is 
no  defense  to  a  bill  by  the  assignee.  The  doctrine  carried 
to  this  extent  effects  a  substantial  change  in  the  law.  Under 
the  old  rule,  the  debtor  could  with  safety  settle  with  his 
creditor  and  pay  him,  unless  he  had  notice  or  knowledge 
of  an  assignment  of  the  whole  of  the  debt;  under  this  rule, 
he  cannot,  if  he  have  notice  or  knowledge  of  an  assignment 
of  any  part  of  it.     *     *     * 

It  is  settled  that  an  assignment  of  a  part  of  a  debt,  if 
assented  to  by  the  debtor  in  such  a  manner  as  to  imply  a 
promise  to  pay  it  to  the  assignee,  is  good  against  a  trustee 
process,  or  against  an  assignee  in  insolvency.  Taylor  v. 
Lynch,  5  Gray  49. 


233 

In  Bourne  v.  Cabot,  3  Met.  305,  the  Court  said :  "The 
order  of  Litchfield  on  the  defendant  was  a  good  assignment 
of  the  fund,  pro  tanto,  to  the  plaintiff,  and  the  express  prom- 
ise to  the  assignee,  to  pay  him  the  balance  when  the  vessel 
should  be  sold,  constituted  a  legal  contract." 

It  is  also  settled  that  an  equitable  assignment  of  the 
whole  fund  in  the  hands  of  the  trustee  is  good  against  a 
trustee  process,  although  the  trustee  has  received  no  notice 
of  the  assignment  until  after  the  trustee  process  is  served, 
and  has  never  assented  to  it.  Wakefield  v.  Martin,  3  Mass. 
558. 

In  Macomber  v.  Doane,  2  Allen  541,  the  Court  said: 
"An  order  constitutes  a  good  form  of  assignment,  it  being 
for  the  whole  sum  due  or  becoming  due  to  the  drawer,  and 
it  need  not  be  accepted  to  make  it  an  assignment."  The 
order  was  for  one  month's  wages,  which,  as  subsequently 
ascertained,  amounted  to  $37.50,  but  it  was  given  as  se- 
curity for  groceries  furnished  and  to  be  furnished ;  and,  on 
the  day  of  the  service  of  the  writ,  the  defendant  owed  the 
plaintiff  for  groceries  $28.79,  and  the  remaining  $8.71  was 
held  by  the  trustee  process.     *     *     * 

Welch  &  Mandeville,  1  Wheat.  233,  was  an  action  of 
covenant  broken,  brought  by  Prior  in  the  name  of  Welch 
against  Mandeville,  who  set  up  a  release  by  Welch,  to 
which  Prior  replied  that  Welch,  before  the  release,  had 
assigned  the  debt  due  by  reason  of  the  covenant  to  him, 
of  which  the  defendant  had  notice.  The  Court  consider 
the  effect  of  certain  bills  of  exchange,  and  say,  "But  where 
the  order  is  drawn  either  on  a  general  or  a  particular  fund, 
for  a  part  only  it  does  not  amount  to  an  assignment  of  that 
part,  or  give  a  lien  as  against  the  drawee,  unless  he  con- 
sent to  the  appropriation  by  an  acceptance  of  the  draft ;" 
that  "a  creditor  shall  not  be  permitted  to  split  up  a  single 
cause  of  action  into  many  actions,  without  the  assent  of 
his  debtor;"  and  that  "if  the  plaintiff  could  show  a  partial 
assignment  to  the  extent  of  the  bills,  it  would  not  avail  him 
in  support  of  the  present  suit."     *     *     * 


234 

In  Peugh  v.  Porter,  112  U.  S.  737,  the  Court  ordered 
that  a  decree  be  entered  that  Peugh,  subject  to  certain  rights 
in  the  estate  at  Winder,  was  entitled  to  one-fourth  of  a 
fund,  by  virtue  of  an  assignment  of  one-fourth  of  the  claim 
against  Mexico,  made  before  the  establishment  of  the  claim, 
from  which  the  fund  was  derived,  and  before  the  fund 
was  in  existence,  and  declare  the  law  to  be  that,  "it  is  in- 
dispensable to  a  lien  thus  created  that  there  should  be  a 
distinct  appropriation  of  the  fund  by  the  debtor,  and  an 
agreement  that  the  creditor  should  be  paid  out  of  it."  In 
Robinson  v.  Bacon,  3  Greenl.  346,  the  order  was  for  the 
payment  of  the  whole  of  a  particular  fund  and  was  held 
good.     *     *     * 

We  think  that  there  should  be  a  decree  that  the  city 
of  Newton  pay  to  the  plaintiff  $600,  and  that  the  remainder 
of  the  same  due  from  the  city,  after  deducting  its  cost,  be 
paid  to  the  other  assignee.  Gilkey. 

So  ordered. 


Editor's  Note. — Money  to   be   earned   under  a   contract  to   be 
made  in  the  future  is  not  assignable.    Herbert  v.  Bronson,  125  Mass. 

475. 


PART  III 

INTERPRETATION  OF  CONTRACTS 


Chapter  IX 
GENERAL  RULES  OF  CONSTRUCTION 


WILLIAM  SUMMERS  ET  AL.  v.  HIBBARD, 
SPENCER,  BARTLETT  &  CO., 

153  111.  102  (1894). 

Several  letters  concerning  the  purchase  and  sale  of  cer- 
tain iron  and  iron  products  passed  between  the  defendant 
and  plaintiff.    The  last  letters  of  each  are  as  follows : 

"Summers  Bros.  &  Co.,  Struthers,  Ohio: 

"Gentlemen — Your  favor  4th  is  at  hand.  If  you  are  willing  to 
revise  your  ideas  a  little  we  can  trade  with  you.  You  may  enter  our 
order  for  5000  bdls.  first-class  com.  sheet-iron,  as  follows :  500  bdls. 
March  delivery ;  500  bdls.,  April  delivery ;  1000  bdls.,  May  delivery ; 
1000  bdls.,  June  delivery;  1000  bdls.,  Julv  delivery;  1000  bdls.,  August 
delivery.  Prices  to  be :  Nos.  22  and  24,  $2.60 ;  25  and  26,  $2.70 ;  27, 
$2.80.     Chicago  delivery,  60  days,  or  two  per  cent,  cash  in  ten  days. 

"If  you  accept  our  offer  vou  may  enter  us  for  March  shipment 
250  bdls.,  26,  24x101  in.,  and  250  bdls.,  27,  24x101  in. 

"Awaiting  your  prompt  reply,  we  are,  very  truly  yours, 

HUBBARD,   SPENCER,  BARTLETT   &  CO." 

On  March  11  appellants  mailed  to  appellees  an  accept- 
ance of  their  offer,  as  follows : 

"All   sales   subject  to   strikes   and  accidents. 

"Summers  Bros.     &  Co.,  manufacturers  of  Box-Annealed  Common 
and   Refined   Sheet-Iron. 

"Struthers,  Ohio,  March  11,  1889. 

"To  Hibbard,  Spencer,  B.  &  Co.,  Chicago: 

"Mr.  Charles :  Dear  Sir — Your  favor  of  March  9  at  hand.  We 
accept  your  offer,  5000  bdls.  ironv  500  March,  500  April,  1000  May, 
1000  June,  1000  July,  1000  August.     Prices,  No.  27  at  $2.80;  26  at 

(235) 


236 

$2.70;  24  at  $2.60.  f.  o.  b.  cars  Chicago,  2  per  cent,  ten  days  from 
date  of  invoice.  We  also  enter  your  order,  250  bdls.,  26x101,  and  250 
bdls.,  27x101.     Mch.  shipment. 

"Respectfully  yours, 

"SUMMERS  BROS  &  CO." 

In  the  latter  part  of  March  and  early  part  of  April, 
1889,  there  was  further  correspondence  between  the  parties, 
which  resulted  in  an  addition  to  the  original  contract  of 
3000  bundles  of  like  sheet-iron,  at  same  figures,  for  July, 
August  and  September  delivery. 

Appellants  delivered  only  1847  bundles  of  sheet-iron 
under  the  first  or  original  contract.  They  made  no  deliveries 
whatever  under  the  second  or  additional  contract.  As  an 
excuse  for  not  making  further  deliveries  they,  on  July  24, 
1889,  represented  to  appellees  that  the  contracts  were 
made  "subject  to  strikes  and  accidents,"  and  that  they  were 
prevented  from  filling  the  contracts  in  time  by  reason  of 
breakages  in  their  mills — and  they  still  make,  on  this  appeal, 
the  same  claims. 

There  was  a  deficit  in  the  May  delivery  of  727  bundles, 
in  the  June  delivery  of  639  bundles,  and  in  the  July  delivery 
of  787  bundles.  July  20  was  the  date  of  the  last  delivery. 
Appellees  bought  on  the  market,  of  other  parties,  on  August 
3,  1889,  1000  bundles ;  on  August  6,  1889,  2000  bundles ;  on 
August  19,  1500  bundles;  and  on  August  24,  1000  bundles. 
These  purchases  were  made  in  order  to  get  iron  to  take  the 
place  of  that  which  appellants  had  contracted  to  sell  them. 
During  the  whole  of  September  and  into  October  the  mar- 
ket price  of  sheet-iron  kept  up,  being  at  no  time  lower  than 
the  prices  paid  in  the  latter  part  of  August.  The  total  of 
the  sheet-iron  delivered  by  appellants,  added  to  that  bought 
by  appellees,  was  700  bundles  less  than  the  amount  that  the 
appellants  had  contracted  to  deliver. 

This  suit  was  brought  by  appellees  to  recover  from  ap- 
pellants the  amount  that  they  paid  for  the  sheet-iron  in 
excess  of  the  contract  price.  They  made  no  claim  in  respect 
to  the  700  bundles.  The  amount  of  the  excess,  less  deduc- 
tions for  unpaid  shipments,  was  $1546.61.     The  Court  in- 


237 

structed  the  jury  to  find  in  favor  of  appellees  for  that 
amount.  From  the  final  judgment  rendered  in  the  trial 
court  there  was  an  appeal  to  the  Appellate  Court,  where  that 
judgment  was  affirmed.  The  present  appeal  is  from  such 
judgment  of  affirmance. 

Baker,  J. :  It  is  insisted  by  appellants  that  the  words 
"All  sales  subject  to  strikes  and  accidents,"  printed  at  the 
top  of  their  letter-heads,  must  be  considered  in  determining 
what  the  contract  was,  and  that  said  words  constituted  an 
express  condition  that  became  a  part  of  the  contract  be- 
tween them  and  appellees.  We  do  not  so  understand  the 
case.  Under  date  of  March  1,  1889,  appellees  invited  appel- 
lants to  make  them  an  offer  of  sale  of  a  specified  quantity 
of  sheet-iron,  to  be  delivered  in  certain  designated  months. 
On  March  4  appellants  made  them  an  offer,  as  requested. 
On  March  9,  in  their  letter  of  that  date,  appellees  declined 
to  accept  the  offer  received,  and  at  the  same  time  they  sub- 
mitted for  consideration  an  offer  of  their  own — an  offer  of 
purchase.  This  offer  contained  all  the  elements  and  terms 
of  a  precise  and  complete  contract,  and  lacked  only  the  as- 
sent thereto  of  the  persons  to  whom  it  was  addressed  to 
make  it  such  a  contract.  The  offer  was  to  buy  a  certain 
quantity  of  sheet-iron,  of  certain  sizes,  to  be  delivered  in 
Chicago  in  specified  quantities  and  at  designated  times,  and 
to  pay  therefor  certain  prices  at  certain  stated  times,  and 
appellees  concluded  their  proposal  by  saying,  "If  you  accept 
our  offer,  you  may  enter  us  for  March  shipment  250 
bundles,"  etc.  This  offer  was  absolute  and  positive,  and 
without  any  conditions,  qualifications,  or  exceptions  what- 
ever. On  March  1 1  appellants  wrote  to  appellees :  "Your 
favor  of  March  9  at  hand.  We  accept  your  offer."  And 
they  thereupon  proceeded  to  restate  in  their  letter  the  terms 
of  the  proposal  made  to  them.  These  two  letters  made  the 
contract  between  the  parties.  The  two  preceding  letters 
seem  to  us  to  be  wholly  immaterial.  The  mere  fact  that 
appellants  wrote  their  acceptance  on  a  blank  form  for  let- 
ters, at  the  top  of  which  were  printed  the  words  "All  sales 


238 

subject  to  strikes  and  accidents,"  no  more  made  those  words 
a  part  of  the  contract  than  they  made  the  other  words  there 
printed,  "Summers  Bros.  &  Co.,  Manufacturers  of  Box- 
Annealed  Common  and  Refined  Sheet-Iron,"  a  part  of  the 
contract.  The  offer  was  absolute.  The  written  acceptance 
which  they  themselves  wrote  was  just  as  absolute.  The 
printed  words  were  not  in  the  body  of  the  letter  or  referred 
to  therein.  The  fact  that  they  were  printed  at  the  head  of 
their  letter-heads  would  not  have  the  effect  of  preventing 
appellants  from  entering  into  an  unconditional  contract  of 
sale. 

In  American  Express  Co.  v.  Pinckney,  29  111.  392,  this 
court  said :  "In  a  case  where  the  agreement  is  partly  written 
and  in  part  printed,  the  preference  is  always  given  to  the 
written  part."  In  that  case  the  printed  matter  was  in  the 
body  of  the  instrument,  incorporated  and  mingled  with  the 
written  matter.  It  would  seem  there  is  more  reason  and 
occasion  for  applying  the  principle  of  law  there  invoked  in 
a  case  where,  as  here,  the  words  in  print  are  separate  and 
apart  from  the  writing  that  appears  upon  the  paper,  and  in 
a  place  where  one  would  not  be  likely  to  look  for  limitations 
upon  that  which  is  written. 

When  an  instrument  is  in  part  written  and  in  part 
printed,  and  these  parts  are  apparently  inconsistent,  or  there 
is  a  reasonable  doubt  upon  the  sense  and  meaning  of  the 
whole,  the  words  in  writing  will  control,  because  they  are 
the  immediate  language  and  terms  selected  by  the  parties 
themselves  for  the  expression  of  their  meaning.  (Alsagu 
v.  St.  Katherine's  Dock  Co.,  14  M.  &  W.  796).  In  the  case 
at  bar  it  is  inconsistent  that  the  contract  should  be  both  an 
absolute  contract  and  a  conditional  contract.  The  terms 
of  payment  in  this  contract  were  sixty  days'  time  or  two  per 
cent,  discount  for  cash  in  ten  days.  Suppose  the  words,  "All 
sales  not  paid  for  on  delivery  to  draw  interest,"  had  been 
printed  on  the  letter-head.  Can  there  be  any  doubt  that  the 
written  terms  would  have  controlled  the  printed  words? 
Here  there  was  a  written  provision  that  the  iron  was  to  be 


239 

delivered  free  on  board  the  cars  at  Chicago.  Suppose  it 
had  been  printed  on  the  letter-head  that  the  manufacturers 
would  not  be  responsible  for  iron  after  a  delivery  to  a  com- 
mon carrier ;  would  not  the  written  provision  have  governed 
the  contract? 

Upon  the  whole,  we  are  inclined  to  the  opinion  that 
the  mere  fact  that  the  words  in  question  were  printed  in 
the  caption  of  the  paper  on  which  appellants  wrote  their 
unqualified  acceptance  of  the  contract  proposed  by  appel- 
lees did  not  have  the  effect  of  reading  them  into  the  agree- 
ment thereby  consummated;  and  appellants  understood  that 
some  sort  of  an  agreement  was  brought  to  a  completion  by 
their  act,  for  in  their  letter  they  wrote :  "We  also  enter  your 
order  for  250  bundles,  etc.,  March  shipment." 

Appellants  made  a  further  claim  that  there  was  an  im- 
plied condition  in  the  contract,  that  would  relieve  them  from 
performance  if  their  mill  plant,  without  any  fault  on  their 
part,  was  so  disabled  as  to  make  it  impossible  for  them  to 
make  the  iron  that  they  contracted  to  deliver.  The  contract 
did  not  call  for  iron  manufactured  at  their  mill.  It  simply 
called  for  first-class  common  sheet-iron  of  certain  specified 
sizes.  There  was  nothing  to  prevent  their  filling  the  con- 
tract by  going  into  the  market  and  buying  sheet-iron  manu- 
factured at  other  mills.  Appellees  seem  to  have  experienced 
no  difficulty,  other  than  that  of  being  forced  to  pay  a  higher 
price,  when  they  went  on  the  market  and  bought  from  other 
parties  the  sheet-iron  contracted  for,  which  appellants  failed 
to  supply.  But  even  if  the  contract  had  been  for  sheet-iron 
of  their  own  manufacture,  the  breakages  in  this  mill  would 
not  have  relieved  them  from  liability.  The  general  doc- 
trine is  that  where  parties,  by  their  own  contract  and  posi- 
tive undertaking,  create  a  duty  or  charge  upon  themselves, 
they  must  abide  by  the  contract  and  make  the  promise  good, 
and  either  do  the  act  or  pay  the  damages.  (Steele  v.  Buck, 
61  111.  343).  Inevitable  accident  affords  them  no  relief,  for 
they  are  regarded  as  insurers  to  the  extent  of  making  good 
the  loss.    There  is  a  principle  of  the  law  that,  in  contracts 


240 

in  which  the  performance  depends  on  the  continued  exist- 
ence of  a  given  or  specified  person  or  animal  or  thing,  a 
condition  is  implied  that  the  impossibility  of  performance 
arising  from  the  perishing  of  the  person,  animal  or  thing 
shall  excuse  the  performance.  But  there  is  no  place  in  this 
case  for  the  application  of  that  rule. 

There  is  no  doubt  of  the  correctness  of  the  rule  stated 
by  appellants,  that  where  delivery  is  required  to  be  made  by 
installments,  the  measure  of  damages  will  be  estimated  by 
the  value  at  the  time  each  delivery  should  be  made.  In  the 
case  at  bar  appellees  made  threats  to  buy  in  at  seller's  ex- 
pense, but  excuses  rendered  and  promises  made  by  appel- 
lants of  frequent  and  large  shipments  deterred  them  from 
doing  so.  If  delivery  is  postponed  by  agreement  between  the 
parties,  the  measure  of  damages  is  the  difference  between 
the  contract  price  and  the  market  price  at  the  time  the  arti- 
cle is  deliverable  by  the  subsequent  agreement,  and  where 
the  time  of  delivery  is  postponed  indefinitely,  the  measure 
of  damages  is  the  difference  between  the  contract  price  and 
the  market  value  at  a  reasonable  time  after  demanding  per- 
formance. Appellees  admit  that  they  had  no  legal  right  to 
buy  in  during  the  month  of  August  more  than  3159  bundles 
of  sheet-iron,  that  being  the  quantity  then  due,  under  the 
original  and  additional  contracts,  on  August  1.  But  the  un- 
controverted  evidence  is  that  the  price  of  such  iron  remained 
firm  during  September  and  a  part  of  October,  being  at 
no  time  lower  than  August  prices.  So  the  premature  pur- 
chases worked  appellants  no  injury,  but  were  to  their  bene- 
fit. Besides  this,  it  was  held  in  Follansbee  v.  Adams,  86 
111.  13,  that  the  vendee  may  charge  the  vendor  with  the 
difference  in  prices  without  making  any  purchases,  the  re- 
sult being  the  same,  and  the  vendee  being  entitled  to  the 
benefit  of  his  contract.     *     *     * 

The  making  of  the  written  contracts  being  admitted  at 
the  trial,  the  Court  having  construed  them  and  held  that  the 
printed  line  in  the  caption  of  the  letters  was  no  part  of  such 
contracts,  and  having  resolved,  as  matter  of  law,  that  there 


241 

was  no  implied  condition  in  them,  growing  out  of  their 
nature,  the  claimed  deficit  in  deliveries  not  being  denied,  and 
there  being  no  conflict  of  testimony  in  respect  to  the  state 
of  facts  upon  which  the  damages  were  to  be  based,  there 
remained  in  the  case  no  question  that  required  submission  to 
the  decision  of  the  jury,  and  it  was  not  manifest  error  to 
direct  a  verdict  for  the  plaintiffs,  and  instruct  the  jury  at 
what  amount  to  assess  the  damages.     *     *     * 

The  judgment  of  the  Appellate  Court  is  affirmed. 


Rules  of  construction 

VARNUM  &  ASPINWALL  ET  AL.  v.  THURSTON, 
17  Md.  Repts.  470  (1861). 

Bill  in  equity  to  enforce  agreement.  Appeal  from 
judgment  for  complainant  (Thurston).  Defendant's  ap- 
peal. 

Cowles  (one  of  the  defendants),  having  made  certain 
contracts  for  the  purchase  of  coal  lands,  entered  into  an 
agreement  with  Varnum  &  Aspinwall  by  which  these  con- 
tracts were  transferred  to  the  latter,  who  were  to  provide 
the  funds  necessary  to  complete  the  contracts,  and  were  then 
to  hold  the  lands  (subject  to  their  claim  to  be  reimbursed 
the  cost  thereof)  for  the  joint  benefit  of  themselves  and 
Cowles  in  equal  half  parts,  and  to  dispose  of  them  thus : 
They  are  to  form,  under  the  general  mining  law,  a  company 
for  mining  coal  on  these  lands,  the  capital  of  which  shall  be 
fixed  at  a  sum  equal  to  the  value  of  the  lands,  to  be  divided 
into  shares  of  $100  each,  and  convey  to  the  company  so 


Editor's  Note. — A  printed  bill-head  or  letter-head  cannot  be  al- 
lowed to  control,  modify  or  alter  the  terms  of  a  contract  which  is 
clearly  expressed  in  writing  below  it.  Sturn  v.  Boker,  150  U.  S.  312. 

But  when  there  is  no  such  conflict,  the  provisions  not  being  in- 
consistent, the  written  provisions  will  not  supersede  the  printed 
ones.    Michaelis  v.  Wolf,  136  111.  68. 


242 

formed  these  lands,  in  payment  of  the  stock  to  be  issued 
in  their  names,  and  shall,  out  of  the  stock  so  issued,  sell 
sufficient  to  reimburse  them  the  cost  of  the  land  and  $15,000 
agreed  to  be  paid  to  Cowles,  and  which  is  to  be  treated  as  a 
charge  upon  the  lands,  and  also  raise  not  less  than  $200,000 
as  a  working  capital  to  the  company,  which,  when  so  raised, 
shall  be  paid  into  the  company  for  the  benefit  of  the  stock- 
holders ;  and,  after  making  the  sales  and  payments  afore- 
said, shall  next  transfer  one-twentieth  part  of  the  whole  of 
said  capital  stock  to  the  complainant  (Thurston)  and  the 
balance  of  the  stock  then  remaining  shall  belong  one-half 
to  Cowles  and  the  other  half  to  Varnum  &  Aspinwall.  A 
company  was  formed,  and  its  stock  sold.     *     *     * 

The  complainant  in  his  bill  insists  that  the  defendants, 
Varnum  &  Aspinwall,  were  bound  by  their  agreement  with 
Cowles  to  form  a  company  and  transfer  to  the  complainant, 
at  all  events  and  in  any  contingency,  one-twentieth  part  of 
the  whole  capital  stock  of  said  company;  and  he  further 
insists  that  they  were  bound  to  provide,  at  all  events  and 
in  any  contingency,  a  working  capital  for  said  company  of 
at  least  $200,000,  and  the  complainant  therefore  asks  specifi- 
cally for  500  shares  (being  one-twentieth  of  the  capital  stock 
of  the  company  which  had  been  formed),  and  that  the  said 
Varnum  &  Aspinwall  might  be  required  to  supply  said 
company  with  a  working  capital  of  $200,000.  The  com- 
plainant further  insists  that  it  was  the  duty  of  Varnum  & 
Aspinwall  to  have  formed  said  company  within  a  reasonable 
time,  and  charges  that  they  have  been  guilty  of  gross  neglect 
of  their  duties  in  various  specified  particulars,  and  of  in- 
excusable delay  in  forming  the  company,  which  caused,  as 
a  necessary  consequence,  accumulation  of  interest  and  loss 
of  profits,  and  he  claims  an  account  for  losses  sustained  by 
these  alleged  improper  acts  and  neglects  of  Varnum  & 
Aspinwall. 

The  counsel  for  the  appellee  urged  the  following  rules 
of  construction  as  applicable  to  the  case : 


243 

1st.  The  agreement  must  be  construed  agreeably  to 
the  intention  of  the  parties,  existing  at  the  time  it  was  made. 
It  must  not  be  construed  by  any  subsequent  event  nor  by 
the  resulj ;  and  such  intention  must  be  the  concurrent  inten- 
tion of  both  the  contracting  parties.  Every  word  "agree- 
ment" (aggregatio  mentimn)  imparts  the  assent  of  the 
minds  of  both  parties  to  the  same  thing  in  the  same  sense, 
and  as  between  the  parties  and  the  agreement  the  intention 
must  be  gathered  from  the  agreement  itself.  This  is  an 
established  rule  of  construction  in  all  courts;  equity  may, 
and  often  does,  control  the  effect  and  operations  of  an  agree- 
ment, but  this  must  not  be  confounded  with  its  construc- 
tion.    Parson's  Merc.  Law  14. 

2d.  And  where  the  language  of  an  agreement  is  plain 
and  unambiguous,  or  by  just  construction  manifests  the  clear 
intention  of  the  parties,  there  can  be  no  implication  of  an 
inconsistent  intention.     2  Gill  74,  Benson  v.  Boteler. 

3d.  It  is  an  established  canon  of  construction  that, 
in  construing  a  written  instrument  the  court  should  give 
meaning  and  operation  to  every  clause  and  word,  provided 
it  can  be  done  consistently  with  the  intention  of  the  parties, 
and  to  that  end  may  look  to  the  motives  that  led  to  the 
agreement,  and  to  the  object  intended  to  be  effected;  and 
may  also  look  to  the  surrounding  circumstances  and  to  the 
circumstance  of  the  parties ;  and  may  suppose  new  and 
different  aspects  of  the  case  from  those  which  have  actually 
arisen,  in  order  to  ascertain  whether  a  suggested  interpre- 
tation does  or  does  not  comport  with  the  intention  of  the 
parties.     1  G.  &  J.  150,  Wirgman  v.  Mactier. 

4th.  And  it  is  also  an  established  rule  that,  in  the 
construction  of  a  written  paper  of  doubtful  import  or  which 
is  reasonably  susceptible  of  two  inconsistent  interpretations, 
in  relation  to  the  right  of  one  not  a  party  to  the  agreement, 
that  construction  shall  be  adopted  which  is  most  beneficial 
to  such  third  person. 

Tuck,  J.,  delivered  the  opinion  of  this  court. 

The  only  subject  before  us  on  this  appeal  is  the  con- 
struction of  the  agreement  of  January  24,  1853. 


244 

The  rules  of  interpretation  asserted  on  the  part  of  the 
appellee  cannot  be  questioned,  but  they  are  all  subordinate 
to  the  leading  principle,  that  the  intention  of  the  parties,  to 
be  collected  from  the  entire  instrument,  must  prevail, 
unless  inconsistent  with  some  rule  of  law.  And  the  maxim 
that  the  words  of  a  writing  shall  be  taken  most  strongly 
against  the  party  employing  them  "applies  only  to  cases  of 
ambiguity  in  the  words,  or  where  the  exposition  is  requisite 
to  give  them  lawful  effect.  It  is  a  rule  of  strictness  and 
rigor,  and  not  to  be  resorted  to  but  where  other  rules  of 
exposition  fail.  The  modern  and  more  reasonable  practice 
is  to  give  to  the  language  its  just  sense,  and  to  search  for 
the  precise  meaning,  and  one  requisite  to  give  due  and  fair 
effect  to  the  contract,  without  adopting  either  the  rule  of  a 
rigid  or  of  an  indulgent  construction."     2  Kent,  556. 

Applying  these  cardinal  rules  to  the  present  instrument, 
we  have  not  been  able  to  reach  the  conclusion  to  which  the 
able  arguments  of  the  appellee's  counsel  sought  to  direct  us. 
We  must  regard  the  whole  agreement,  the  nature  of  the 
transaction  in  hand,  its  objects  and  purposes,  and  the  means 
and  manner  of  accomplishing  them,  as  disclosed  by  the 
instrument  itself ;  and,  looking  to  these,  we  cannot  doubt 
that  the  parties  designed  that  the  right  of  the  appellee 
should  be  contingent,  and  not  fixed  and  certain,  to  the 
degree  now  contended  for  on  his  behalf. 

The  agreement  and  schedule  show  that  Cowles  had 
speculated  in  coal  lands  and  made  large  purchases,  which 
he  transferred  to  Varnum  &  Aspinwall,  who  were  to  provide 
funds  to  meet  his  engagements.  The  third  article  expressly 
provides  that  they  should  hold  the  lands  "subject  to  their 
claim,  to  be  reimbursed  the  cost  thereof,  and  all  expenses 
in  relation  thereto."  for  the  benefit  of  themselves  and 
Cowles,  as  thereafter  provided.  A  joint  stock  company  was 
to  be  created,  and  these  lands  converted  into  stock,  to  be 
issued  to  the  appellants,  who  were  to  deal  with  the  shares  as 
provided  in  the  fifth  article,  on  a  portion  of  which  the 
appellee  mainly  relies  in'  support  of  his  claim  to  priority. 


245 

Now,  the  first  question  that  naturally  arises  here  is  whether 
it  was  designed  that  Varnum  &  Aspinwall  should  be  in  any 
worse  condition  after  the  formation  of  the  company  than 
before;  that  is  to  say,  were  they  or  not  to  hold  the  stock  as 
they  had  held  the  lands,  as  a  security  for  their  outlay  ?  We 
think  that  only  one  answer  can  be  made  to  this  inquiry,  and 
that  is  that  it  was  the  intention  that  the  stock  should  stand 
as  a  substituted  security  in  place  of  the  land,  and  that  the 
fifth  article  must  be  deemed,  as  far  as  the  appellants'  re- 
imbursement was  contemplated  by  the  parties,  as  intended 
to  accomplish  that  end.  Considering  the  merits  of  the  case, 
we  can  see  no  possible  objection  to  this  view  of  the  agree- 
ment, while  considerations  of  justice  demand  it.  The  ques- 
tion, then,  arises,  is  there  anything  in  the  fifth  or  any  other 
article  by  which  they  have  stripped  themselves  of  the 
security  provided  by  the  third?  If  it  were  not  for  the 
words  "one-twentieth  part  of  the  whole  capital  stock,"  we 
suppose  that  no  such  pretension  could  be  advanced.  But 
that  clause  does  not  stand  alone.  It  appears  to  us  to  be 
impossible  to  separate  it  from  the  context,  and  give  it  the 
meaning  contended  for,  without  defeating  the  manifest 
object  of  the  parties  as  to  other  ends  contemplated  at  the 
time  of  making  the  agreement.  It  is  said  that  these  words 
created  a  positive  and  fixed  right  in  the  appellee  to  that 
portion  of  the  stock,  without  reference  to  the  result  of  sales 
or  other  contingency.  We  may  here  remark  that  if  the 
parties  had  so  intended,  it  was  easy  to  have  placed  the  mat 
ter  beyond  doubt.  This  clause  is  the  last  of  the  fifth  article, 
by  which  certain  duties  had  been  imposed  on  the  appellants, 
which  it  might  be  impossible  for  them  to  discharge  if  the 
appellee's  construction  were  to  prevail.  We  think  the 
order  of  sentences  and  the  phraseology  imply  something 
more  than  a  succession  of  events ;  for  the  transfer  to  the 
appellee  was  to  be  made  after  certain  other  things  were  to 
have  been  done.  Let  us  see  what  these  requirements  are. 
The  appellants  were,  "out  of  the  stock  so  issued  to  them, 
to  sell  sufficient  to  reimburse  them  the  cost  of  the  land," 


246 

etc.  Was  not  the  whole  stock  placed  at  their  disposal,  if  it 
required  all?  "Sufficient"  means  enough,  what  may  be 
necessary  to  accomplish  an  object ;  and  how  any  other 
effect  can  be  ascribed  to  the  word,  as  here  employed,  we 
do  not  perceive,  unless  we  adopt  the  suggestion  made  at  the 
6ar,  that  it  must  be  intended  that  the  parties  meant  sufficient 
of  the  disposable  stock.  But  here  we  would  be  met  by  the 
difficulty  that  if  the  agreement,  as  it  stands,  means  one 
thing,  we  cannot,  by  implication,  interpolate  a  word  which 
would  give  it  a  different  effect.  The  most  reasonable  idea, 
in  case  of  any  doubt  upon  the  words,  would  be  that  those 
who  had  projected  the  enterprise,  and  advanced  their 
means  in  furtherance  of  the  common  object,  should,  out 
of  the  property,  be  indemnified  against  loss,  and  not  be  post- 
poned for  the  benefit  of  another,  who,  as  far  as  the  paper 
shows  anything  on  the  subject,  had  furnished  no  considera- 
tion for  the  stipulation  in  his  favor.  By  the  interpretation 
of  the  appellee,  he  would  be  preferred  not  only  to  Yarnum  & 
Aspinwall,  as  to  their  outlay,  but  also  to  Cowles  as  to  his 
$15,000,  "expended  in  obtaining  the  contracts,  and  in  and 
about  the  lands,"  which  is  made  a  charge  on  the  lands  by 
the  sixth  article,  as  the  claim  of  Varnum  &  Aspinwall  had 
been  by  the  third. 

But  suppose  we  confine  ourselves  to  the  last  clause  of 
the  fifth  article,  on  which  reliance  is  placed  by  the  appellee. 
We  must  take  it  all  together,  and  then  the  inquiry  is,  what 
effect  are  we  to  give  to  the  words  "after"  and  "next"?  It 
is  said  that  these  indicate  only  the  order  of  time  in  which 
certain  things  were  to  occur.  If  this  were  so,  it  might  hap- 
pen that  the  appellee  would  never  enjoy  what  he  insists  is 
a  fixed  and  ascertained  amount  of  stock,  because  the  trans- 
fer was  to  be  made  after  the  sales  and  payment  aforesaid ; 
that  is,  sales  of  stock  sufficient  for  all  the  purposes  set  forth 
in  the  preceding  clause  of  the  article,  and  until  these  ends 
were  gratified  we  do  not  perceive  how  Varnum  &  Aspin- 
wall could  be  called  on  to  make  the  transfer.  The  words 
"one-twentieth  of  the  whole  of  said  stock"  are  certainly 


247 

plain  enough,  and  sufficiently  indicate  the  amount  the  appel- 
lee was  to  receive,  but,  taking  the  whole  of  the  clause, 
and  giving  to  every  word  the  meaning  which  we  think 
they  may  bear  consistently  with  the  objects  of  the  trans- 
action and  the  mode  of  their  accomplishment,  as  defined 
in  other  parts,  the  most  reasonable  interpretation  is  that 
this  expression  should  secure  to  the  appellee  the  amount  of 
stock  mentioned,  in  preference  to  the  division  between  the 
other  parties,  but  not  in  priority  over  the  claim  that  Varnum 
&  Aspinwall  might  have  for  their  outlay.  This  we  take  to 
be  in  harmony  with  the  words  of  the  entire  instrument,  and 
at  the  same  time  quite  consistent  with  the  equities  of  the 
transaction.  For,  although  it  may  be  assumed  that  the 
appellee,  by  force  of  the  clause  in  his  favor,  had  an  interest 
which  a  court  of  equity  would  enforce,  we  do  not  suppose 
it  can  be  regarded  as  of  a  higher  dignity  than  that  of  the 
parties  by  whom  the  enterprise  was  commenced,  and  whose 
means  were  embarked  in  its  prosecution,  and  for  whose 
reimbursement  express  provision  was  made  in  the  third 
and  sixth  articles.  These  are  as  plain  in  their  words  and 
meaning,  when  considered  alone,  as  the  clause  relied  on  by 
the  appellee,  and  would  seem  to  address  themselves  to  our 
acceptance  as  well ;  and  both  parties  relying  on  separate 
clauses,  the  only  safe  guide  is  to  consider  them  all  as  com- 
prising one  instrument,  to  be  interpreted  by  the  intent  of 
the  parties,  to  be  gathered  from  the  whole. 

It  is  true  that  instruments  cannot  be  construed  by  what 
parties  may  have  done  under  them,  1  H.  &  G.  74,  but  we 
think  that  courts  may  regard  the  nature  of  the  transaction 
and  probable  results ;  that  is,  such  as  may  be  supposed  to 
have  entered  into  the  minds  of  the  parties  at  the  time  the 
agreement  was  made;  for  justice  seems  to  require  that  both 
parties  should  be  bound  by  a  consent  of  the  mind  to  the 
same  thing  in  the  same  sense.  We  suppose  that  all  the 
parties  concerned  in  this  speculation — as  speculators  gener- 
ally do — looked  to  large  profits.  None  apprehended  any 
loss,  and  in  this  confidence  they  did  not  provide  in  terms  for 


248 

contrary  results.  But  if  loss  had  been  apprehended,  and 
they  had  purposed  to  provide  for  such  contingency,  can 
anyone  believe  that  Cowles  and  Varnum  &  Aspinvvall  would 
have  consented  to  purchase  and  pay  for  the  lands,  bear  all 
the  losses  and  save  harmless  the  only  person  concerned, 
who  does  not  appear  to  have  advanced  anything ;  we  should 
rather  say,  allow  him  only  to  make  a  profit  of  the  business? 

The  examples  cited  on  the  question  of  construction, 
from  cases  where  wills  and  testaments  were  the  subjects 
of  consideration,  we  think,  do  not  apply  here.  This  case, 
and  the  like,  should  be  governed  by  the  principles  recognized 
in  deeds,  and  there  are  many  in  this  court  where  priorities 
have  been  allowed,  upon  words  and  phrases,  to  which  the 
rules  observed  in  the  construction  of  wills  would  have 
applied  as  reasonably  as  to  the  present  agreement. 

Decree  reversed. 


Editor's  Note. — Twelve  Rules  of  Construction. 

1.  Intent  of  parties  as  expressed  in  words  must  govern. 

2.  Words  are  to  be  taken  in  their  ordinary  sense. 

3.  In  case  of  doubt  preliminary  negotiations  ought  to  be  con- 
sidered. 

4.  Intention  is  not  to  be  collected  from  detached  parts,  but 
from  the  whole  of  it. 

5.  Where  there  are  several  writings  they  will  be  construed 
together. 

6.  The  contract  includes  all  those  things  which  the  law  im- 
plies as  part  of  it. 

7.  A  particular  custom  may  be  proved  to  vary  the  usual  mean- 
ing. 

8.  Words  are  to  be  taken  in  the  ordinary-  and  popular  sense. 

9.  Technical  words  are  to  be  taken  in  a  technical  sense. 

10.  Where  there  is  conflict  between  printing  and  writing  the 
writing  will  prevail. 

11.  Words  and  phrases  susceptible  of  two  meanings,  one  of 
which  will  uphold  the  contract,  and  the  other  destroy  it,  the  former 
will  be  adopted. 

12.  Where  one  construction  will  make  a  contract  legal  the 
other  illegal,  the  former,  if  reasonable,  will  be  adopted. — 9  Cyc.  583 
et  seq. 


PART  IV 

DISCHARGE  OF  CONTRACTS 


Chapter  X 
DISCHARGE  BY  AGREEMENT 


Waiver  of  condition  allowing  discharge 

WEAVER  v.  GRIFFITH,  APPELLANT, 

210  Pa.  13  (1904). 

Bill  in  equity  by  purchaser  for  specific  performance  of 
a  contract  to  sell  land.  Error  assigned  was  decree  of 
specific  performance. 

Per  Curiam  :  The  defendant  might  have  terminated 
the  contract  under  the  clause  that  "in  case  the  said  party  of 
the  second  part  doth  not  make  payment  as  above  specified  at 
the  time  herein  stated,  then  this  agreement  is  to  be  null  and 
void,  and  all  parties  are  to  be  released  from  all  liabilities 
herein  and  all  money  previously  paid  forfeited."  -But  the 
failure  to  make  the  payments  at  the  stipulated  times  did  not, 
of  its  own  force,  terminate  the  contract.  It  was  not  one  of 
option,  but  of  sale  and  purchase,  and  prima  facie  the  time  of 
payment  was  not  of  its  essence.  While  a  contract  may  pro- 
vide that  it  shall  be  terminable  at  the  will  of  either  party,  so 
that  a  purchaser  may  even  terminate  it  by  his  own  default. 
yet  such  effect  will  not  be  given  to  it  unless  the  intent  of 
both  parties  to  that  effect  be  made  apparent  by  clear,  pre- 
cise and  unequivocal  language.  The  presumption  is  that 
the  forfeiture  clause  is  for  the  benefit  of  the  vendor  and 
enforceable  at  his  election.  Without  such  election  and  action 
the  purchaser  would  not  be  released  from  his  obligation  to 

(249) 


250 

pay,  and  equally  the  vendor  would  continue  to  be  bound  by 
his  agreement  to  sell. 

In  the  present  case  the  Court  below  found  as  a  fact 
that  the  defendant  had  not  elected  to  enforce  his  right  of 
forfeiture,  but  by  his  conduct  had  substantially  waived  it. 
Thus  retaining  his  right  to  enforce  the  contract  against  the 
purchaser  to  buy,  he  equally  kept  alive  his  own  obligation 
to  sell. 

Decree  affirmed. 


When  right  of  discharge  by  condition  subsequent  is  lost 

RAY  v.  THOMPSON, 

12  Cushing  (Mass.)    281  (1853). 

Assumpsit  for  the  price  of  a  horse  sold  to  defendant. 
Defense,  sale  on  condition  that  defendant  might  return  the 
horse,  and  that  he  had  returned  it.    Verdict  for  defendant. 

Plaintiff  offered  to  prove  that  defendant  had  so  abused 
the  horse  that  it  was  materially  injured  and  lessened  in 
value,  and  the  plaintiff  had  refused  in  consequence  to  re- 
ceive it  back.  This  evidence  was  excluded,  and  plaintiff 
excepted  to  the  ruling. 

By  the  Court  :  The  evidence  offered  by  the  plaintiff 
ought  to  have  been  admitted,  to  prove,  if  he  could,  that  the 
horse  had  been  abused  and  injured  by  the  defendant,  and 
so  to  show  that  the  defendant  had  put  it  out  of  his  power  to 
comply  with  the  condition  by  returning  the  horse.  The 
sale  was  on  a  condition  subsequent ;  that  is,  on  condition 
he  did  not  elect  to  keep  the  horse,  to  return  him  within  the 
time  limited.  Being  on  a  condition  subsequent,  the  property 
vested  presently  in  the  vendee,  defeasible  only  on  the  per- 
formance of  the  condition.  If  the  defendant,  in  the  mean- 
time, disabled  himself  from  performing  the  condition,  and 


251 

if  the  horse  was  substantially  injured  by  the  defendant  by 
such  abuse,  he  would  be  so  disabled — then  the  sale  became 
absolute,  the  obligation  to  pay  the  price  became  uncondi- 
tional, and  the  plaintiff  might  declare  as  upon  an  indebitatus 
assumpsit,  without  setting  out  the  conditional  contract. 
Moss  v.  Sweet,  3  Eng.  Law  &  Eq.  311. 
New  trial  ordered. 


Chapter  XI 
DISCHARGE  BY  PERFORMANCE 


GILLESPIE  TOOL  CO.  v.  WILSON  ET  AL., 
123  Pa.  19  (1888). 

Assumpsit  on  a  contract  for  drilling  a  well.  Defense, 
non-performance.    Non-suit.    Plaintiff  appeals. 

Plaintiff  agreed  to  drill  for  defendants  a  gas  well  2,000 
feet  deep  and  five  and  five-eighths  inches  in  diameter.  In 
case  salt  water  was  struck,  the  well  was  to  be  eight  inches 
in  diameter  in  order  to  shut  off  the  salt  water.  A  well 
was  dug  to  the  depth  of  between  1,500  and  1,600  feet,  when, 
owing  to  an  accident,  it  had  to  be  abandoned.  Another  well 
was  then  begun,  and  when  at  a  depth  of  800  feet  plaintiff 
was  notified  that  defendants  held  the  contract  was  for  the 
first  well  and  would  not  be  responsible  for  the  second. 
Plaintiff  continued  and  drilled  the  second  well  to  a  depth 
of  2,204  feet,  but  struck  salt  water  at  a  depth  of  1,729  feet, 
and  to  case  this  off  reduced  the  hole  to  admit  of  casing 
four  and  one-quarter  inch  size.  Plaintiff  claimed  a  sub- 
stantial performance  on  the  ground  that  the  well  was  for 
testing  the  territory,  and  that  for  this  purpose  a  four  and 
one-quarter  inch  hole  was  as  good  as  a  five  and  five-eighths 
inch,  and  that  it  would  have  been  a  useless  expense  to  ream 
it  out  to  the  latter  diameter  when  the  experiment  proved 
that  the  territory  did  not  produce  gas. 

Mr.  Justice  Sterrett:  Plaintiff  company  neither 
proved  nor  offered  to  prove  such  facts  as  would  have  war- 
ranted the  jury  in  finding  substantial  performance  of  the 
contract  embodied  in  the  written  proposition  submitted  to 
and  accepted  by  the  defendants.  In  several  particulars  the 
work  contracted  for  was  not  done  according  to  the  plain 
terms  of  the  contract.    Nearly  one-half  of  the  well  was  not 

(252) 


253 

reamed  out,  as  required,  to  an  eighth-inch  diameter,  so  as 
to  admit  five  and  five-eighths  inch  casing  in  the  clear.  About 
180  feet  of  the  lower  section  of  the  well  also  was  bored  four 
or  four  and  one-quarter  inches,  instead  of  five  and  five- 
eighths  inches  in  diameter.  In  neither  of  these  particulars, 
nor  in  any  other  respect,  was  there  any  serious  difficulty  in 
the  way  of  completing  the  work  in  strict  accordance  with 
the  terms  of  the  agreement.  To  have  done  so  would  have 
involved  nothing  more  than  additional  time  and  increased 
expense.  The  fact  was  patent,  as  well  as  proved  by  undis- 
puted evidence,  that  a  four  and  one-quarter  inch  well  would 
not  discharge  as  much  gas  as  one  five  and  five-eighths  inches 
in  diameter.  It  is  no  answer  to  say  that  for  the  purpose  of 
testing  the  territory  a  four  and  one-quarter  inch  well  was 
as  good  as  a  five  and  five-eighths  inch  well,  nor  that  reaming 
out  the  well  to  the  width  and  depth  required  by  the  contract 
would  have  subjected  defendants  to  additional  expense  with- 
out any  corresponding  benefit.  That  was  their  own  affair. 
They  contracted  for  the  boring  of  a  well  of  specified  depth, 
dimensions,  etc.,  and  they  had  a  right  to  insist  on  at  least 
a  substantial  performance  of  the  contract  according  to  its 
terms.  That  was  not  done,  and  the  Court  was  clearly  right 
in  refusing  to  submit  the  case  to  the  jury  on  evidence  that 
would  not  have  warranted  them  in  finding  substantial  per- 
formance of  the  contract. 

The  equitable  doctrine  of  substantial  performance  is 
intended  for  the  protection  and  relief  of  those  who  have 
faithfully  and  honestly  endeavored  to  perform  their  con- 
tracts in  all  material  and  substantial  particulars,  so  that 
their  right  to  compensation  may  not  be  forfeited  by  reason 
of  mere  technical,  inadvertent  or  unimportant  omissions 
or  defects.  It  is  incumbent  on  him  who  invokes  its  pro- 
tection to  present  a  case  in  which  there  has  been  no  wilful 
omission  or  departure  from  the  terms  of  his  contract.  If 
he  fails  to  do  so,  the  question  of  substantial  performance 
should  not  be  submitted  to  the  jury.  There  is  nothing  in 
the  record  that  requires  a  reversal  of  the  judgment. 

Judgment  affirmed. 


■J 


254 

Discharge  by  performance 

SINGERLY  v.  THAYER 

108  Pa.  291   (1885). 

Chief  Justice  Mercer  delivered  the  opinion  of  the  court. 

This  contention  arises  on  a  contract  contained  in  the 

following  written  proposal,  to  wit: 

"15th  and  Market  Streets,  Philadelphia,  Pa.    8/16/1881. 
"William  M.  Singerly,  Esq. 

"I  propose  to  put  my  patent  hydraulic  hoist  in  your  new 
building  on  Chestnut  street  (including  a  duplex  pump  worth  $800) 
according  to  verbal  specifications  given  by  your  architect  for  $2300 
warranted  satisfactory  in  every  respect. 

"Yours, 
"ELI  THAYER." 

Singerly  accepted  this  proposition.  The  elevator  was 
substantially  finished.  It  proved  to  be  unsatisfactory.  He 
therefore  declined  to  accept  it,  and  gave  notice  that  he 
desired  it  to  be  removed.  This  Thayer  refused  to  do. 
Thereupon  Singerly  took  it  down,  and  holds  it  subject  to 
the  order  of  Thayer.  The  latter  brought  this  suit,  claiming 
the  contract  price. 

The  controlling  question  is  what  meaning  and  effect 
are  to  be  given  to  the  words  "warranted  satisfactory  in 
every  respect"? 

Satisfactory  to  whom?  Certainly  not  to  the  maker 
only.  Was  it  to  be  satisfactory  to  the  person  for  whom  it 
was  to  be  made  and  by  whom  it  was  to  be  used?  The 
learned  judge  thought  this  was  not  a  necessary  requirement, 
but  if  it  was  built  in  a  workmanlike  manner  and  performed 
its  intended  purpose  in  a  manner  which  ought  to  be  satisfac- 
tory to  Singerly  (the  defendant  below),  that  was  sufficient. 
In  other  words,  it  may  have  been  wholly  unsatisfactory  to 
him,  yet  if  the  jury  thought  he  ought  to  have  been  satisfied 
he  was  bound  to  accept  it.  In  effect  that  is,  it  need  not  have 
operated  to  his  satisfaction  in  any  respect,  but  to  the  satis- 
faction of  the  jury  which  might  be  called  to  pass  on  the 
rights  of  the  parties. 

The  proposition  was  made  to  induce  to  purchase  a 
kind  of  elevator  not  in  general  use.     The  fair  inference  is 


255 

that  he  desired  to  procure  one  that  would  be  satisfactory 
to  himself.  The  manifest  import  and  meaning  of  the  lan- 
guage used  is  that  it  should  be  satisfactory  to  him.  This, 
then,  was  the  agreement.  To  him  alone  was  the  proposition 
made.  It  would  not  have  been  any  clearer  had  it  read  "war- 
ranted satisfactory  to  you  in  every  respect."  He  therefore 
was  the  person  to  decide  and  to  declare  whether  it  was 
satisfactory.  He  did  not  agree  to  accept  what  might  be 
satisfactory  to  others,  but  what  was  satisfactory  to  himself. 
This  was  a  fact  which  the  contract  gave  him  the  right  to 
decide.  He  was  the  person  negotiating  for  its  purchase. 
He  was  the  person  who  was  to  test  it  and  use  it.  No  other 
person  could  intelligently  determine  whether  in  every  respect 
he  was  satisfied  therewith. 

McCaren  v.  McNulty,  7  Gray  139,  was  on  an  agree- 
ment to  make  a  bookcase  "in  a  good,  strong  and  workman- 
like manner  to  the  satisfaction  of  the  president  of  the 
society"  for  which  it  was  to  be  made.  It  was  held  not  to  be 
sufficient  to  prove  that  it  was  constructed  according  to  the 
terms  of  the  agreement  without  also  proving  that  it  was 
satisfactory  to  or  accepted  by  the  defendant. 

When  the  agreement  is  to  make  and  furnish  an  article 
to  the  satisfaction  of  the  person  for  whom  it  is  to  be  made, 
numerous  authorities  declare  it  is  not  a  compliance  with 
the  contract  to  prove  he  ought  to  have  been  satisfied.  It 
was  so  held  in  Gray  v.  R.  R.,  11  Hun.  70,  where  the  contract 
was  for  the  purchase  of  a  steamboat.  In  Brown  v.  Foster, 
113  Mass.  136,  when  the  agreement  was  to  make  a  suit  of 
clothes;  in  Zaleski  v.  Clark,  14  Conn.  218,  on  a  contract  for 
a  plaster  bust  of  the  deceased  husband  of  the  defendant ; 
in  Gibson  v.  Cranage,  39  Mich.  49,  where  a  portrait  was  to 
be  satisfactory  to  the  defendant;  and  in  Hoffman  v.  Gal- 
leher,  6  Daly  42,  where  a  portrait  of  defendant  was  to  be 
satisfactory  to  his  friends.  So  where  a  person  got  a  set  of 
teeth  from  a  dentist  under  an  agreement  that  they  were  to 
be  satisfactory  it  was  held  that  he  was  made  the  exclusive 
judge  of  their  value. 


256 

To  justify  a  refusal  to  accept  the  elevator  on  the  ground 
that  it  is  not  satisfactory,  the  objection  should  be  made  in 
good  faith.  It  must  not  be  merely  capricious.  It  is  de- 
clared in  1  Parsons  on  Contracts  542,  if  A  agrees  to  make 
something  for  B,  to  meet  the  approval  of  B,  or  with  any 
similar  language,  B  may  reject  it,  for  any  objection  which 
is  made  in  good  faith  and  is  not  merely  capricious.  The 
case  of  Andrews  v.  Belfield,  2  C.  B.  N.  S.  779,  arose  on  a 
written  agreement  to  build  a  carriage  in  a  manner  which 
should  meet  the  approval  of  the  person  for  whom  it  was 
to  be  made,  not  only  the  score  of  workmanship,  but  also 
that  of  convenience  and  taste.  It  was  held  that  his  rejec- 
tion made  in  good  faith  was  conclusive. 

It  may  have  been  very  unwise  in  the  maker  of  this 
elevator  to  agree  to  expend  labor  and  furnish  materials  and 
rely  for  payment  on  the  uncertain  approval  of  one  so  largely 
interested  in  determining  whether  it  was  satisfactory  to  him- 
self. Having  entered  into  a  contract  whereby  he  did  run 
this  risk,  his  legal  rights  are  to  be  determined  thereby.  In 
Nelson  v.  Von  Bonnhorst,  5  Casey  352,  one  gave  a  written 
instrument  under  seal  admitting  an  indebtedness  to  another 
in  a  specified  sum,  which  he  agreed  to  pay  "whenever  in  my 
opinion  my  circumstances  will  enable  me  to  do  so."  It  was 
held  that  the  instrument  imposed  no  legal  obligation  which 
could  be  enforced  by  action,  as  the  maker  was  the  sole  judge 
of  his  ability.  In  that  case  there  was  an  unquestioned  in- 
debtedness to  be  discharged  by  the  payment  of  money. 
Every  other  person  might  swear  the  circumstances  of  the 
debtor  made  him  abundantly  able  to  pay,  yet  that  did  not 
determine  his  legal  liability. 

Judgment  reversed,  and  a  venire  facias  de  novo 
awarded. 


Editor's  Note. — In  an  action  upon  a  contract  which  provides 
that  if  there  shall  be  any  difficulty  as  to  the  work  giving  satisfaction, 
the  contractor  is  to  make  it  entirely  satis  facto  ry,  he  is  entitled  to  a 
reasonable  time  to  make  it  satisfactory,  and  if  the  evidence  is  con- 
flicting as  to  the  extent  of  the  delay,  and  as  to  whether  he  is  given 
an  opportunity  to  make  it  satisfactory,  the  case  is  for  the  jury 
and  the  verdict  and  judgment  in  favor  of  the  contract  will  be 
affirmed.     Schlicter  v.  Ins.  Co.,  191   Pa.  477. 


257 

Discharge  by  performance 

ERIKSON  v.  WARD, 
266  111.  Repts.  259  (1914). 

Writ  of  error  to  the  Appellate  Court  for  the   First 

District. 

Mr.  Justice  Farmer  delivered  the  opinion  of  the 
court.  Plaintiff's  right  of  action  was  based  upon  a  certain 
building  contract  entered  into  by  the  respective  parties  July 
9,  1907.  The  contract  provided  that  plaintiff  was  to  furnish 
the  labor  and  material  and  construct  the  building  for  $4,800. 
It  was  to  be  completed  on  or  before  November  1,  1907, 
and  was  to  be  constructed  according  to  plans  and  specifica- 
tions made  by  Architect  Walter,  in  a  good,  workmanlike  and 
substantial  manner,  "to  the  satisfaction"  of  defendant,  under 
the  direction  of  the  architect,  the  consideration  to  be  paid  in 
sums  in  proportion  to  the  progress  of  the  work.  On  the 
first  day  of  August  defendant  paid,  in  accordance  with  the 
architect's  certificate,  $600.  On  the  fifth  of  August  he  dis- 
charged the  architect,  and  did  not  employ  any  other  archi- 
tect or  superintendent,  but  thereafter  superintended  the 
building  himself.  August  15  he  paid  plaintiff  $1,400  on  the 
contract,  and  October  17,  $500,  making  a  total  paid  on  the 
contract  of  $2,500.  He  thereafter  refused  to  make  further 
payments,  for  the  reason  he  claimed  the  work  had  not  been 
done  in  accordance  with  the  contract,  plans  and  specifica- 
tions. 

It  is  insisted  the  court  erroneously  construed  the  pro- 
vision of  the  contract  that  the  work  was  to  be  done  accord- 
ing to  the  drawings  and  specifications,  to  the  satisfaction 
of  the  defendant,  under  the  direction  of  the  architect,  and 
erroneously  instructed  the  jury  as  to  the  rights  of  the  parties 
under  the  terms  of  the  agreement. 

Whether  plaintiff  honestly  and  in  good  faith  performed 
the  contract  was  an  issue  of  fact  made  by  the  pleadings  and 
submitted  to  the  jury.  (Shepard  v.  Mills,  173  111.  223.) 
Plaintiff  offered  proof  tending  to  show  that,  except  for  the 


258 

changes  directed  and  approved  by  defendant,  he  did  perform 
the  contract  in  all  its  material  and  substantial  particulars. 
Defendant  offered  proof  to  the  contrary.  Notwithstanding 
the  facts  are  not  open  to  review  by  us,  they  have  been 
elaborately  argued  by  both  parties.  Defendant  contends  the 
proof  shows  plaintiff  did  not  substantially  perform  the  con- 
tract, and  that  the  law  is  when  a  builder  neglects  to  per- 
form or  intentionally  omits  the  performance  of  substantial 
work  required  by  the  contract  there  can  be  no  recovery.  By 
the  instructions  given  on  behalf  of  plaintiff  the  Court  told 
the  jury  that  literal  compliance  with  the  plans  and  specifica- 
tions was  not  necessary  to  a  recovery;  that  if  the  evidence 
showed  plaintiff  had  in  good  faith  performed  the  contract 
substantially  and  in  all  material  respects  according  to  the 
plans  and  specifications,  without  wilful  departure  therefrom 
or  omission  in  essential  points,  he  was  entitled  to  recover 
the  contract  price,  less  the  reasonable  cost  shown  by  the 
evidence  of  putting  the  premises  in  the  condition  they  would 
have  been  in  if  the  work  had  been  performed  according  to 
the  plans,  specifications  and  ordinances.  The  Court  also 
instructed  the  jury  that  the  provision  of  the  contract  that 
the  work  was  to  be  done  to  the  satisfaction  of  defendant 
meant  satisfaction  to  be  reasonably  and  not  arbitrarily  exer- 
cised ;  that  upon  that  question  the  testimony  of  defendant 
that  the  work  was  not  done  to  his  satisfaction  was  not  alone 
to  be  considered,  but  that  all  the  evidence  should  be  con- 
sidered in  determining  whether  defendant  in  good  faith, 
honestly  and  reasonably,  was  not  satisfied  with  the  work. 
As  to  changes  in  the  plans  and  specifications,  the  Court  in- 
structed the  jury  defendant  had  a  right  to  make  changes, 
and  if  he  did  order  changes,  and  they  were  made  as  re- 
quested, such  changes  should  not  be  considered  as  a  failure 
to  perform  the  contract.  An  issue  of  fact  was  made  as  to 
whether  certain  changes  in  the  plans  and  specifications, 
admitted  by  plaintiff  to  have  been  made,  were  assented  to 
by  defendant,  and  whether  the  contract  otherwise  was  per- 


259 

formed  according  to  its  terms.     These  were  questions  for 
the  jury  to  determine.     Shepard  v.  Mills,  supra. 

This  Court  has  adopted  the  rule,  sustained  by  the 
weight,  though  not  by  all  of  the  authorities,  that  where 
there  has  been  no  wilful  departure  from  a  building  contract 
in  essential  points,  but  the  contractor  has  honestly  per- 
formed the  contract  in  all  its  substantial  and  material  par- 
ticulars, he  will  not  be  held  to  have  forfeited  his  right  to 
recover  by  reason  of  technical,  inadvertent  or  unimportant 
omissions.  (Peterson  v.  Pusey,  237  111.  204.)  We  must 
assume  the  jury  found  plaintiff  had  performed  the  contract 
substantially  and  in  all  its  material  particulars,  otherwise 
the  verdict  would  not  have  been  for  the  plaintiff,  and  that 
in  assessing  the  amount  due  plaintiff  allowance  was  made  for 
any  damages  resulting  from  a  departure  from  the  contract 
in  unimportant  particulars,  as  the  verdict  was  for  a  less  sum 
than  the  balance  due  by  the  terms  of  the  agreement.  The 
question  then  arises,  what  is  the  proper  legal  construction 
of  the  language  in  the  contract  that  the  work  was  to  be  done 
to  the  satisfaction  of  the  defendant?  We  cannot  agree 
that  this  language  in  the  contract  authorized  the  defendant 
arbitrarily  to  defeat  payment  solely  on  the  ground  that  the 
contract  had  not  been  performed  to  his  satisfaction.  The 
contract  bound  the  contractor  to  furnish  the  materials  and 
do  the  work  in  accordance  with  plans  and  specifications 
prepared  by  defendant's  architect,  and  under  the  direction 
of  said  architect.  It  was  not  a  simple  agreement  to  con- 
struct a  building  that  would  be  satisfactory  to  defendant. 
If  it  was  in  good  faith  constructed  of  material  and  in  the 
manner  specified  in  the  plans  and  specifications  prepared  by 
the  defendant's  architect,  defendant  could  not  refuse  pay- 
ment merely  because  he  was  dissatisfied.  We  have  held 
that  where  a  building  contract  provides  the  work  done  or  the 
material  used  shall  be  subject  to  the  approval  of  the  architect 
before  payment  is  to  be  made,  a  capricious  and  unreasonable 
refusal  of  the  architect  to  approve  the  work  or  material  will 
not  defeat  payment.     In  such  cases  the  architect  has  not  the 


260 

right  to  arbitrarily  withhold  his  approval  if,  acting  reason- 
ably and  in  good  faith,  he  ought  to  have  been  satisfied  with 
the  work  or  material  and  have  approved  the  same.  (Badger 
v.  Kerber,  61  111.  328.)  It  has  been  held  that  where  one 
contracts  to  furnish  another  personal  property,  personal  ser- 
vices or  works  of  art  that  will  give  satisfaction,  if  the 
property  or  the  services  furnished  are  not  satisfactory  there 
can  be  no  recovery.  (Kendall  v.  West,  196  111.  221.)  The 
same  strictness  has  not  usually  been  applied  to  contracts  for 
the  construction  of  buildings.  (4  Elliott  on  Contracts,  sec. 
3,710.)  In  Hawkins  v.  Graham,  149  Mass.  284  (21  N.  E. 
Rep.  312),  the  Court  construed  a  contract  to  furnish  de- 
fendant a  hearing  apparatus  that  would  prove  satisfactory 
to  him  and  conform  to  all  the  requirements  of  the  contract. 
The  Court  said  the  only  question  to  be  determined  was 
whether  the  right  of  plaintiff  to  recover  depended  upon  the 
actual  satisfaction  of  defendant  with  the  work  and  material 
furnished  by  plaintiff.  After  referring  to  the  modern  modes 
of  business  and  the  anxiety  to  make  contracts  inducing  the 
placing  of  such  provisions  in  a  contract,  the  Court  said : 
"Still,  when  the  consideration  furnished  is  of  such  a  nature 
that  its  value  will  be  lost  to  the  plaintiff,  either  wholly  or  in 
great  part,  unless  paid  for,  a  just  hesitation  must  be  felt  and 
clear  language  required  before  deciding  that  payment  is  left 
to  the  will,  or  even  to  the  idiosyncrasies,  of  the  interested 
party.  In  doubtful  cases  courts  have  been  inclined  to 
construe  agreements  of  this  class  as  agreements  to  do  the 
thing  in  such  a  way  as  reasonably  ought  to  satisfy  the  de- 
fendant. (Sloan  v.  Hayden,  110  Mass.  141.)  In  Handy  v. 
Bliss,  204  Mass.  513  (90  N.  E.  Rep.  864),  a  building  con- 
tract was  before  the  court  which  required  the  work  to  be 
performed  to  the  satisfaction  of  the  owner.  The  Court 
said :  "There  is  no  reason  why  the  doctrine  of  substantial 
performance  should  not  apply  where  the  contract  is  to  be 
performed  to  the  satisfaction  of  the  owner,  according  to  the 
usual  meaning  of  this  expression  as  applied  to  contracts  of 
this  kind,  namely,  to  his  satisfaction,  so  far  as  he  is  acting 


261 

reasonably  in  considering  the  work  in  connection  with  the 
contract."  After  stating  there  is  more  reason  for  the  strict 
construction  of  such  contracts  where  the  subject  matter  of 
the  contract  involves  questions  of  personal  taste  or  preju- 
dice and  no  benefit  would  pass  under  it  unless  the  work  was 
accepted,  the  Court  said :  "The  erection  of  a  building  upon 
real  estate  ordinarily  confers  a  benefit  upon  the  owner,  and 
he  should  not  be  permitted  to  escape  payment  for  it  on 
account  of  a  personal  idiosyncrasy.  Indeed,  under  the  law 
of  Massachusetts  this  question  is  usually  of  little  practical 
application  to  contracts  for  buildings  upon  real  estate,  for 
if  the  contract  is  not  performed  by  reason  of  the  failure  of 
the  owner  to  be  satisfied  with  that  which  ought  to  satisfy 
him,  there  can  be  a  recovery  upon  a  quantum  meruit." 

A  careful  investigation  of  this  record  fails  to  disclose 
to  us  any  meritorious  ground  for  reversing  the  judgment, 
and  it  is  affirmed. 

Judgment  affirmed. 


CHAPTER  XII 
DISCHARGE  BY  IMPOSSIBILITY 


Destruction  of  subject  matter 

DEXTER  v.  NORTON  ET  AL., 

47  N.  Y.  62  (1871). 

Appeal  from  a  judgment  entered  upon  an  order  of  the 
General  Term  of  the  Supreme  Court  in  the  first  judicial 
district,  overruling  plaintiff's  exceptions,  and  directing  judg- 
ment dismissing  the  complaint,  in  accordance  with  ruling  of 
the  court  at  circuit. 

This  action  is  brought  to  recover  damages  for  a  breach 
of  a  contract  to  sell  and  deliver  cotton.  Defendants,  on 
the  5th  day  of  October,  1865,  at  the  City  of  New  York, 
agreed  to  sell  and  deliver  to  the  plaintiff  607  bales  of  cotton, 
bearing  certain  marks  and  numbers,  specified  in  the  con- 
tract, at  the  price  of  forty-nine  cents  per  pound,  and  four- 
teen bales,  bearing  marks  and  numbers,  specified  in  the 
written  contract,  at  the  price  of  forty-three  cents  per  pound, 
the  cotton  to  be  paid  for  on  delivery.  Defendants  delivered 
to  the  plaintiff  460  bales  of  the  said  cotton,  the  remaining 
161  bales  were  accidentally  destroyed  by  fire  without  fault 
or  negligence  of  the  defendants.  Cotton  rose  in  value  after 
the  sale,  and  plaintiff  claimed  to  recover  the  increase  on  the 
161  bales.  The  Court  dismissed  the  complaint,  upon  the 
ground  that  a  fulfillment  of  the  contract  by  the  sellers  had 
become  impossible  by  the  destruction,  without  their  fault, 
of  the  subject  matter  of  the  sale,  and  they  were,  therefore, 
excused  from  the  obligation  to  perform  their  agreement. 

Plaintiff  excepted. 

Church,  C.  J. :  The  contract  was  for  the  sale  and 
delivery   of   specific  articles   of  personal   property.     Each 

(262) 


263 

bale  sold  was  designated  by  a  particular  mark,  and  there 
is  nothing  in  the  case  to  show  that  these  marks  were  used 
merely  to  distinguish  the  general  kind  or  quality  of  the 
article,  but  they  seem  to  have  been  used  to  describe  the 
particular  bales  of  cotton  then  in  possession  of  the  de- 
fendant. Nor  does  it  appear  that  there  were  other  bales  of 
cotton  in  the  market  of  the  same  kind,  and  marked  in  the 
same  way.  The  plaintiff  would  not  have  been  obliged  to 
accept  any  other  cotton  than  the  bales  specified  in  the  bought 
note. 

The  contract  was  executory,  and  various  things  re- 
mained to  be  done  to  the  161  bales  in  question  by  the  sellers 
before  delivery.  The  title,  therefore,  did  not  pass  to  the 
vendee,  but  remained  in  the  vendor.  Joyce  v.  Adams,  8 
N.  Y.  291. 

This  action  was  brought  by  the  purchaser  against  the 
vendor  to  recover  damages  for  the  non-delivery  of  the 
cotton,  and  the  important  and  only  question  in  the  case  is 
whether  upon  an  agreement  for  the  sale  and  delivery  of 
specific  articles  of  personal  property,  under  circumstances 
where  the  title  to  the  property  does  not  vest  in  the  vendee, 
and  the  property  is  destroyed  by  an  accidental  fire  before 
delivery  without  the  fault  of  the  seller,  the  latter  is  liable 
upon  the  contract  for  damages  sustained  by  the  purchaser. 

The  general  rule  on  this  subject  is  well  established, 
that  where  the  performance  of  a  duty  or  charge  created  by 
law  is  prevented  by  inevitable  accident  without  the  fault  of 
the  party  he  will  be  excused,  but  where  a  person  absolutely 
contracts  to  do  a  certain  thing  not  impossible  or  unlawful 
at  the  time,  he  will  not  be  excused  from  the  obligations  of 
the  contract  unless  the  performance  is  made  unlawful  or 
is  prevented  by  the  other  party. 

Neither  inevitable  accident  nor  even  those  events  de- 
nominated acts  of  God  will  excuse  him,  and  the  reason  given 
is  that  he  might  have  provided  against  them  by  his  contract. 
Paradine  v.  Jane,  Aleyn,  27. 


264 

But  there  are  a  variety  of  cases  where  the  courts  have 
implied  a  condition  in  the  contract  itself,  the  effect  of  which 
was  to  relieve  the  party  when  the  performance  had,  without 
his  fault,  become  impossible;  and  the  apparent  confusion 
in  the  authorities  has  grown  out  of  the  difficulty  in  deter- 
mining in  a  given  case  whether  the  implication  of  a  con- 
dition should  be  applied  or  not,  and  also  in  some  cases  in 
"placing  the  decision  upon  a  wrong  basis.  The  relief  afforded 
to  the  party  in  the  cases  referred  to  is  not  based  upon  excep- 
tions to  the  general  rule,  but  upon  the  construction  of  the 
contract. 

For  instance,  in  the  case  of  an  absolute  promise  to 
marry,  the  death  of  either  party  discharges  the  contract, 
because  it  is  inferred  or  presumed  that  the  contract  was 
made  upon  the  condition  that  both  parties  should  live. 

So  of  a  contract  made  by  a  painter  to  paint  a  picture, 
or  an  author  to  compose  a  work,  or  an  apprentice  to  serve 
his  master  a  specified  number  of  years,  or  in  any  contract 
for  personal  services  dependent  upon  the  life  of  the  indi- 
vidual making  it,  the  contract  is  discharged  upon  the  death 
of  the  party,  in  accordance  with  the  condition  of  continued 
existence,  raised  by  implication.  2  Smith's  Leading  Cases, 
50. 

The  same  rule  has  been  laid  down  as  to  property ; 
"As  if  A.  agrees  to  sell  and  deliver  his  horse  Eclipse  to  B. 
on  a  fixed  future  day,  and  the  horse  die  in  the  interval 
the  obligation  is  at  an  end."  Benjamin  on  Sales,  424.  In 
replevin  for  a  horse,  and  judgment  of  retomo  habendo,  the 
death  of  the  horse  was  held  a  good  plea  in  an  action  upon 
the  bond.  12  Wend,  589.  In  Tylor  v.  Caldwell  (113  E. 
C.  L.  R.  824)  A.  agreed  with  B.  to  give  him  the  use  of 
a  music  hall  on  specified  days,  for  the  purpose  of  holding 
concerts,  and  before  the  time  arrived  the  building  was  acci- 
dentally burned ;  held,  that  both  parties  were  discharged 
from  the  contract.  Blackburn,  J.,  at  the  close  of  his  opinion, 
lays  down  the  rule  as  follows :  "The  principle  seems  to 
us  to  be  that   in  contracts  in  which  the  performance  de- 


265 

pends  on  the  continued  existence  of  a  given  person  or  thing, 
a  condition  is  implied  that  the  impossibility  of  performance, 
arising  from  the  perishing  of  the  person  or  thing,  shall 
excuse  the  performance."  And  the  reason  given  for  the 
rule  is,  "because,  from  the  nature  of  the  contract,  it  is 
apparent  that  the  parties  contracted  on  the  basis  of  the  con- 
tinued existence  of  the  particular  person  or  thing." 

In  School  District  No.  1  v.  Dauchy  (25  Conn.  530) 
the  defendant  had  agreed  to  build  a  schoolhouse  by  the 
first  of  May,  and  had  it  nearly  completed  on  the  twenty- 
seventh  of  April,  when  it  was  struck  by  lightning  and 
burned ;  and  it  was  held  that  he  was  liable  in  damages  for 
the  non-performance  of  the  contract.  But  the  Court,  while 
enforcing  that  general  rule  in  a  case  of  evident  hardship, 
recognizes  the  rule  of  an  implied  condition  in  case  of  the 
destruction  of  the  specific  subject  matter  of  the  contract ; 
and  this  is  the  rule  of  the  civil  law.  Pothier  on  Contracts 
and  Sale,  Art.  4,  1,  p.  31. 

The  circumstances  of  this  case  are  favorable  to  the 
plaintiff.  The  property  was  merchandise  sold  in  the  mar- 
ket. The  defendant  could,  and  from  the  usual  course  of 
business,  we  may  infer,  did  protect  himself  by  insurance ; 
but  in  establishing  rules  of  liability  in  commercial  trans- 
actions it  is  far  more  important  that  they  should  be  uniform 
and  certain  that  it  is  to  work  out  equity  in  a  given  case. 
There  is  no  hardship  in  placing  the  parties  (especially  the 
buyer)  in  the  position  they  were  in  before  the  contract  was 
made.  The  buyer  can  only  lose  the  profits  of  the  purchase ; 
the  seller  may  lose  the  whole  contract  price,  and  if  his 
liability  for  non-delivery  should  be  established,  the  enhanced 
value  of  the  property.  After  considerable  reflection,  I 
am  of  the  opinion  that  the  rule  here  indicated  of  an  im- 
plied condition  in  case  of  the  destruction  of  the  property 
bargained,  without  fault  of  the  party,  will  operate  to  carry 
out  the  intention  of  the  parties  under  most  circumstances, 
and  will  be  more  just  than  the  contrary  rule.  The  buyer 
can  of  course  always  protect  himself  against  the  effect  of 


266 

the  implied  condition,  by  a  provision  in  the  contract  that 
the  property  shall  be  at  the  risk  of  the  seller. 

Upon  the  grounds  upon  which  this  rule  is  based  of  an 
implied  condition,  it  can  make  no  difference  whether  the 
property  was  destroyed  by  an  inevitable  accident,  or  by  an 
act  of  God,  the  condition  being  that  the  property  shall  con- 
tinue to  exist.  If  we  were  creating  an  exception  to  the 
general  rule  of  liability,  there  would  be  force  in  the  con- 
siderations urged  upon  the  argument,  to  limit  the  exception 
to  cases  where  the  property  was  destroyed  by  the  act  of 
God,  upon  grounds  of  public  policy,  but  they  are  not  mate- 
rial in  adopting  a  rule  for  the  construction  of  the  contract 
so  as  to  imply  a  condition  that  the  property  was  to  continue 
in  existence.  It  can  make  no  difference  how  it  was  de- 
stroyed, so  long  as  the  party  was  not  in  any  degree  in  fault. 
The  minds  of  the  parties  are  presumed  to  have  contemplated 
the  possible  destruction  of  the  property,  and  not  the  manner 
of  its  destruction ;  and  the  supposed  temptation  and  facility 
of  the  seller  to  destroy  the  property  himself,  cannot  legiti- 
mately operate  to  affect  the  principle  involved. 

Judgment  affirmed. 


When  contract  is  not  discharged  by  impossibility 

BERG  v.  ERICKSON, 
234  Fed.  817  (1916). 

Action  by  J.  C.  Berg  against  John  Erickson.  Judg- 
ment for  defendant,  and  plaintiff  brings  error.  Suit  in 
equity  by  John  Erickson  against  J.  C.  Berg.  From  a 
decree  for  complaint,  respondent  appeals.  Reversed,  and 
remanded  for  new  trial. 

Sanborn,  Circuit  Judge.  John  Erickson,  a  resident 
of  Kansas,  made  a  written  contract  with  J.  C.  Berg,  a 
resident  of  St.  Francis,  Texas,  on  April  16.  1913,  to  pasture 


267 

for  him  1,000  steers  and  to  ''furnish  plenty  of  good  grass, 
water  and  salt  during  the  grazing  season  of  1913"  to  them 
for  $7  per  head,  which  Berg  agreed  to  pay.  Erickson  fur- 
nished the  grass,  water  and  salt  to  them  during  May  and 
June,  but  the  most  severe  drought  which  had  been  known  in 
that  part  of  Kansas  subsequently  prevailed,  and  on  account 
of  that  drought  it  was  impossible  for  Erickson  to  furnish, 
and  he  failed  to  furnish,  plenty  of  good  grass  for  the  cattle 
during  July,  August  and  September,  to  the  damage  of  Berg 
in  the  sum  of  about  $20,000;  and  the  main  question  in 
this  case  is  whether  Erickson  is  liable  to  pay  these  damages 
to  Berg  on  account  of  his  breach  of  his  contract,  or  is 
absolved  from  liability  for  them  by  the  impossibility  of 
performance  which  resulted  from  the  drought  after  the  con- 
tract was  made.  The  question  was  presented  in  this  way: 
At  the  end  of  the  grazing  season  Erickson  claimed  an  agis- 
ter's lien  on  the  cattle  for  the  agreed  price  of  the  pasturing, 
$7  per  head,  and  refused  to  deliver  them  until  that  price  was 
paid.  Thereupon  Berg  replevied  the  cattle  upon  a  complaint 
in  which  he  alleged  his  ownership  and  right  to  the  possession 
of  them,  and  that  by  the  failure  of  Erickson  to  furnish  the 
agreed  grass  the  cattle  were  worth  $33,000  less  than  they 
would  have  been  if  Erickson  had  performed  his  contract. 
Erickson  denied  liability  for  the  damage  to  the  cattle,  on  the 
ground  that  it  was  caused  by  the  drought,  an  act  of  God, 
and  pleaded  his  agister's  lien  and  his  right  to  the  possession 
of  the  cattle  thereunder.  He  also  brought  a  suit  in  equity 
against  Berg,  in  which  he  set  forth  and  prayed  the  adjudi- 
cation of  his  agister's  lien  for  the  $7  a  head,  and  asked 
further  relief.  Berg,  in  his  answer  to  this  complaint,  denied 
the  existence  of  any  agister's  lien,  alleged  Erickson's  breach 
of  his  contract  and  his  damage  in  the  sum  of  $33,000, 
pleaded  a  counterclaim  for  these  damages,  and  asked  a  judg- 
ment for  their  recovery. 

The  action  in  replevin  and  the  suit  in  equity  were  tried 
together  by  the  court  below  without  a  jury  by  consent  of  the 
parties.     The  court  decided  that  Erickson  had  an  agister's 


268 

Hen  upon  the  cattle  for  the  value  of  the  grass  furnished  in 
the  months  of  May  and  June,  and  for  certain  expenses  which 
he  incurred  and  the  value  of  certain  services  which  he 
rendered  in  caring  for  the  cattle  when  they  were  ill,  and 
in  feeding  them  at  the  end  of  the  grazing  season,  to  the 
amount  of  $2,999.41,  and  rendered  a  judgment  in  the  action 
in  replevin  for  the  return  to  him  of  the  cattle,  or  for 
the  payment  to  him  of  that  amount.  The  court  also 
held  that  Erickson  was  absolved  from  liability  for  his  breach 
of  his  contract  to  furnish  plenty  of  good  grass  by  the  un- 
usual drought,  and  it  rendered  a  decree  in  the  suit  of  equity 
that  Berg  was  indebted  to  Erickson  in  the  sum  of  $2,999.41, 
that  Erickson  should  have  judgment  for  this  amount  in  his 
action  in  replevin,  and  that  Berg  should  take  nothing  on 
account  of  the  damages  he  sustained  by  reason  of  Erickson's 
breach  of  his  contract.  Berg  challenges  the  judgment  by 
writ  of  error,  and  the  decree  by  an  appeal. 

Erickson  agreed  to  furnish  plenty  of  good  grass  to  the 
cattle  throughout  the  grazing  season  of  1913.  He  failed  to 
perform  this  contract,  to  the  damage  of  Berg  in  the  sum 
of  $20,000,  because  the  unprecedented  drought  made  it 
impossible  for  him  so  to  do.  Did  this  impossibility  of 
performance,  which  arose  subsequent  to  the  making  of  the 
contract,  out  of  the  unusual  drought,  the  act  of  God,  relieve 
Erickson  from  liability  for  the  damages  inflicted  upon  Berg 
by  his  failure  to  perform  his  contract  ? 

An  examination  of  the  authorities  and  reflection  have 
satisfied  us  that  the  answer  to  this  question  must  be  deduced 
from  a  correct  construction  of  the  agreement  of  these  parties 
under  the  following  principles  of  law,  which,  notwithstand 
ing  the  fact  that  there  are  confusing  and  conflicting  decisions 
on  cognate  questions  in  the  books,  are  established  by  the 
more  convincing  reasons  and  the  greater  weight  of 
authority : 

Where  an  obligation  or  a  duty  is  imposed  on  a  person 
by  law,  he  will  be  absolved  from  liability  for  non-perform- 
ance of  the  obligation  if  his  performance  is  rendered  im- 


269 

possible  without  his  fault,  by  an  act  of  God  or  an  unavoid- 
able accident.  But  this  rule  is  not  generally  applicable  to 
contract  obligations. 

Whether  or  not  one,  who  by  contract  imposes  upon 
himself  an  obligation  or  duty,  is  absolved  from  liability 
for  his  non-performance  by  a  subsequent  impossibility  of 
performance  caused,  without  his  fault,  by  an  act  of  God 
or  an  unavoidable  accident,  depends  upon  the  true  construc- 
tion of  his  contract.  The  general  rule  is  that  one,  who 
makes  a  positive  agreement  to  do  a  lawful  act,  is  not 
absolved  from  liability  for  a  failure  to  fulfill  his  covenant 
by  a  subsequent  impossibility  of  performance  caused  by  an 
act  of  God,  or  an  unavoidable  accident,  because  he  volun- 
tarily contracts  to  perform  it  without  any  reservation  or 
exception,  which,  if  he  desired,  he  could  make  in  his  agree- 
ment, thereby  induces  the  other  contracting  party  in  con- 
sideration of  his  positive  covenant  to  enter  into  and  become 
bound  by  the  contract,  and  while  courts  may  enforce,  they 
may  not  avoid,  such  contracts  in  the  absence  of  fraud  or 
some  similar  defense.    9  Cyc.  627,  par.  5. 

But  where  it  clearly  appears  from  the  situation  of  the 
parties  at  the  time  they  made  their  contract  and  from  its 
terms,  that  they  must  have  known  that  its  performance 
would  be  impossible  unless  a  person  or  persons,  as  in  a 
contract  of  intermarriage,  or  in  a  contract  for  the  personal 
service  of  an  artist,  such  as  a  singer,  should  be  living  at 
the  time  for  the  performance  of  the  contract,  and  there  is 
no  express  or  implied  warranty  of  his  life,  a  condition  is 
implied  that  the  contractor  shall  be  absolved  from  liability 
in  performance  becomes  impossible  without  his  fault,  by  the 
death  of  the  indispensable  person.  A  like  condition  is 
implied  in  a  contract  for  the  delivery  of  a  specific  animal 
under  like  condition. 

There  are  authorities  to  the  effect  that,  where  it 
clearly  appears  from  the  situation  of  the  parties  and  their 
contract  that  they  must  have  known  when  they  made  it 
that  its  performance  would  be  impossible  unless  a  thing, 


270 

or  a  condition  of  things,  then  in  existence  should  exist  at 
the  time  of  performance,  or  unless  an  indispensable  thing 
or  conditon  of  things  not  then  in  existence  should  come 
into  existence  before  and  remain  in  existence  at  the  time  of 
performance,  there  also,  in  the  absence  of  an  expressed  or 
implied  warranty  of  the  existence  of  the  indispensable  thing 
or  condition  at  the  time  of  performance,  there  arises  an 
implied  condition  of  the  contract  that,  if  that  thing  or  con- 
dition is  destroyed  or  prevented  from  coming  into  existence 
before  the  time  for  the  performance  of  the  contract  without 
fault  of  the  obligor,  either  by  the  act  of  God,  or  by  an 
unavoidable  accident,  the  obligor  shall  be  absolved  from 
liability  for  his  failure  to  perform.  9  Cyc.  631,  632,  633. 
But  no  decision  of  the  Supreme  Court  or  of  any  federal 
court  to  this  effect  has  been  cited  or  discovered  which  goes 
so  far,  and  the  rule  adopted  by  the  Supreme  Court,  which 
must  prevail  here,  is  otherwise. 

It  is  that,  although  general  words,  which  cannot  be  rea- 
sonably supposed  to  have  been  used  with  reference  to  the 
possibility  of  an  event,  may  not  be  held  to  bind  one,  yet, 
where  one,  at  the  time  of  making  his  contract,  must  have 
known  or  could  have  reasonably  anticipated,  and  in  his  con- 
tract could  have  guarded  against,  the  possible  happening  of 
the  event  causing  the  impossibility  of  his  performance,  and 
nevertheless  he  makes  an  unqualified  undertaking  to  per- 
form, he  must  do  so  or  pay  the  damages  for  his  failure. 

In  Northern  Pacific  Ry.  Co.  v.  American  Trading  Co., 
195  U.  S.  439,  the  railway  company,  during  the  Chinese- 
Japanese  War,  made  a  contract  with  a  shipper  to  carry  from 
Newark,  N.  J.,  to  Japan  by  a  specific  steamer  leaving 
Tacoma  at  a  certain  day,  2,000  tons  of  lead,  which  was 
contraband  of  war.  Time  was  of  the  essence  of  this  contract. 
The  company  carried  the  lead  to  Tacoma,  and  put  it  in  the 
steamship  in  time,  but  the  subcollector  of  the  port  unlaw- 
fully refused  to  give  the  ship  its  clearance  on  the  ground 
that  the  lead  was  contraband,  and  the  master  unloaded  it, 


271 

took  his  clearance  and  sailed.  The  result  was  that  the  lead 
did  not  reach  Japan  until  six  weeks  after  it  would  have 
arrived  there  if  it  had  gone  on  the  specified  ship.  When 
it  arrived,  the  war  had  ceased  and  the  price  of  lead  had 
fallen.  The  shipper  sued  for  damages,  and  the  defense  was 
that  the  railway  company  was  absolved  from  liability  by 
the  unforeseen  impossibility  of  performance  caused  without 
its  fault  by  the  act  of  the  subcollector.  The  Supreme  Court 
construed  the  contract  to  have  been  an  unqualified  under- 
taking to  ship  the  lead  by  the  steamship  named,  and  held 
the  railway  company  liable  for  the  damages  which  resulted 
from  the  unauthorized  and  unforeseen  act  of  the  subcol- 
lector.   It  said : 

"This  contract,  in  view  of  all  the  facts,  we  think  was 
made  in  contemplation  of  trouble  arising  from  the  character 
of  the  lead  as  contraband  of  war.  *  *  *  Under  these 
circumstances  it  ought  not  to  be  held  that  the  mistaken 
action  of  the  deputy  collector  in  refusing  to  give  the  clear- 
ance should  operate  as  an  excuse  for  the  non-performance  of 
the  contract,  which  was  not  hereby  rendered  illegal.  It 
cannot  be  affirmed  that  such  possible  refusal  was  not  within 
the  contemplation  of  the  contracting  parties  when  the  con- 
tract was  made.  Many  causes,  it  was  known,  might  operate 
to  obstruct  the  transportation  of  articles  contraband  of  war. 
This  particular  form  of  impediment  may  not  have  been  actu- 
ally within  the  minds  of  the  parties  to  the  contract ;  but 
there  was,  as  the  agreed  facts  show,  present  to  their  minds 
the  fact  that  there  might  be  trouble  in  procuring  the  trans- 
portation of  the  lead  because  of  its  character  as  contraband 
of  war,  and  in  the  light  of  those  facts  the  contract  was  made, 
and  in  substance  ratified  after  it  was  made.  The  railroad 
receivers  took  the  risk  of  this,  as  of  other  obstructions, 
in  making  the  contract,  and  they  ought  to  be  held  to  it." 

In  the  light  of  these  principles  of  law  and  authorities, 
the  decisive  question  in  this  case  becomes :  Was  the  con- 
tract of  these  parties  an  absolute  agreement  by  Erickson  to 
furnish  plenty  of  good  grass  to  the  cattle  during  the  grazing 


272 

season  of  1913,  or  a  contract  to  furnish  good  grass  unless  by 
an  unprecedented  drought  it  should  become  impossible  for 
him  to  do  so?  Basic  rules  for  the  construction  of  contracts 
are :  The  purpose  of  every  agreement  is  to  record  the  inten- 
tion of  the  parties  when  their  minds  met,  and  the  object 
of  all  construction  is  to  ascertain  and  enforce  that  intention. 
The  court  should,  so  far  as  possible,  put  itself  in  the  place 
of  the  parties  when  their  minds  met  upon  the  terms  of 
the  agreement,  and  then,  from  a  consideration  of  the  writing 
itself,  of  its  purpose,  and  of  the  circumstances  which  condi- 
tion its  making,  endeavor  to  ascertain  what  they  intended 
to  agree  to  do,  upon  what  sense  and  meaning  of  the  terms 
they  used  their  minds  actually  met.  Accumulator  Co.  v. 
Dubuque  St.  Ry.  Co.,  12  C.  C.  A.  37.  Where  in  the  appli- 
cation of  a  contract  to  its  subject-matter,  an  ambiguity  or 
uncertainty  arises,  which  cannot  be  removed  by  an  examina- 
tion of  the  agreement  alone,  parol  evidence  of  the  circum- 
stances under  which  it  was  made,  and  of  statements  made  in 
the  negotiations  which  preceded  it,  may  be  admitted  to 
resolve  the  ambiguity  and  to  prove  the  real  intentions 
of  the  parties.  Kilby  Mfg.  Co.  v.  Hinchman-Renton  Fire 
Proofing  Co.,  132  Fed.  957,  961. 

Let  us  apply  these  rules  to  the  interpretation  of  this 
contract.  On  its  face  it  is  free  from  ambiguity.  By  it 
Erickson  agrees,  without  exception  or  qualification,  to  fur- 
nish plenty  of  good  grass  for  the  cattle  during  the  grazing 
season  of  1913.  His  counsel  argue  that  his  real  agreement 
was  that  he  would  furnish  plenty  of  good  grass  during 
the  season  unless  an  unprecedented  drought  should  make 
it  impossible  for  him  so  to  do,  and  that  in  that  case  he 
should  be  absolved  from  liability  to  perform,  and  they 
appeal  to  the  oral  testimony  to  import  this  exception  into 
the  contract.  That  testimony  disclosed  these  facts :  The 
contract  was  made  on  April  16,  1913.  Berg  was  a 
resident  of  St.  Francis,  Texas.  He  had  never  had  any 
experience  of  Kansas  grass.  He  sought  pasturing  for  1,000 
cattle.      He   went   from   Texas   to   Kansas   and   applied   to 


273 

Erickson  for  this  pasturing.  Before  the  contract  was  made 
Erickson  showed  him  the  pastures  into  which  he  proposed 
to  put  the  cattle  and  into  which  they  were  subsequently 
driven.  Berg  looked  at  the  pastures  and  made  no  objection 
to  them.  Erickson  told  him  he  would  guarantee  the  pas- 
tures. After  this  inspection  and  conversation  Erickson  made 
the  contract  to  furnish  plenty  of  good  grass  to  the  cattle 
during  the  grazing  season  of  1913.  Droughts  are  not  and 
have  not  been  for  many  years,  unusual  in  parts  of  Kansas. 
There  had  been  many  before  the  drought  of  1913.  It  is 
common  knowledge  that  droughts  decrease  the  production 
of  grass  in  varying  amounts  according  to  their  severity  and 
the  character  of  the  land  they  affect.  The  drought  of  1913 
was  the  most  severe  ever  known  in  the  region  where  these 
pastures  are.  There  was  no  rain  from  May  until  Sep- 
tember, but  it  did  not  prevent  the  growth  of  all  grass  on 
the  pastures.  They  produced  sufficient  to  keep  the  cattle 
alive,  and  at  the  end  of  the  season,  when  they  were  taken 
out  in  November,  they  weighed  as  much  as,  or  even  more 
than,  when  they  were  placed  in  the  pastures ;  but  the  cattle 
failed  to  make  the  gain  in  flesh  and  weight  which  they 
would  have  made  if  Erickson  had  furnished  them  plenty 
of  good  grass. 

In  view  of  these  facts,  the  situation  of  these  parties 
when  this  contract  was  made,  the  circumstances  surrounding 
them,  and  the  unqualified  undertaking  of  Erickson  expressed 
in  the  agreement  converge  with  compelling  power  to  force 
the  mind  to  the  conclusion  that  the  minds  of  these 
contracting  parties  met  in  the  intention  that  Erickson  should, 
and  that  he  did,  guarantee  plenty  of  good  grass  for  these 
cattle  in  these  pastures  where  he  put  them  during  the  entire 
grazing  season,  without  exempting  or  intending  to  exempt 
himself  from  liability  in  the  case  of  any  impossibility  of  per- 
formance that  might  result  from  unprecedented  drought, 
fire    or   other   act   of   God   or  accident.     It   was   common 


274 

knowledge  that  droughts  were  not  unusual  in  Kansas. 
It  was  common  knowledge  that  they  decreased  the  growth 
of  grass.  It  was  common  knowledge  that  one  could  not  tell 
by  the  examination  of  pastures  in  Kansas,  of  which  he 
had  no  previous  knowledge,  in  the  spring  of  the  year  before 
the  13th  of  April,  whether  or  not  they  would  produce  suffi- 
cient grass  for  1,000  cattle  throughout  the  coming  summer. 
Berg  knew  nothing  of  their  productive  capacity ;  Erickson 
knew  all  about  it.  The  question  of  whether  or  not  the  pas- 
tures would  produce  plenty  of  grass  for  1,000  head  of 
cattle  throughout  the  season,  and  whether  or  not  the 
droughts  that  visited  some  parts  of  Kansas  would  be  so 
severe  as  to  prevent  such  production,  could  not  have  failed 
to  be  present  in  the  minds  of  each  of  these  parties  when 
they  made  this  contract.  Those  were  the  crucial  questions 
before  them,  and  the  unprecedented  drought  which  prevented 
the  performance  of  the  contract,  "the  event,"  in  the  words 
of  the  Supreme  Court,  "which  causes  the  impossibility, 
might  have  been  anticipated  and  guarded  against  in  the 
contract."  Erickson  inserted  no  provision  in  the  contract 
exempting  himself  from  liability  in  the  happening  of  that 
event,  but,  on  the  other  hand,  promised  Berg  that  he  would 
guarantee  the  pastures  before  the  written  contract  was 
signed  and  then  made  the  unqualified  undertaking  therein  to 
furnish  plenty  of  good  grass  to  the  cattle  throughout  the 
grazing  season.  What  is  more  natural  or  probable  than  that 
Erickson,  who  knew  the  climate,  the  pastures,  and  their 
productivity,  induced  Berg,  who  knew  nothing  upon  this 
subject  and  could  learn  little  by  an  inspection  of  the  pastures 
in  April  to  agree  to  pay  the  $7  a  head  for  the  pasturing  of 
the  cattle  by  making  this  absolute  covenant  that  he  would 
furnish  plenty  of  good  grass  to  the  cattle  throughout  the 
season?  The  proof  in  this  case  has  satisfied  that  it  was 
the  intention  of  the  parties  to  this  contract  that  Erickson 
should  thereby  make,   and  that  he  did  make,   an   absolute 


275 

covenant  with  Berg  to  furnish  plenty  of  good  grass  for 
the  cattle  throughout  the  entire  grazing  season  without 
exempting  himself  from  liability  in  case  of  drought,  fire, 
or  other  act  of  God  or  accident  that  might  make  his  per- 
formance impossible,  that  he  took  the  risk  of  such  an  event 
(195  U.  S.  467,  25  Sup.  Ct.  84,  49  L.  Ed.  269),  and  that 
he  is  not  absolved  from  liability  for  the  damages  which 
Berg  sustained  by  reason  of  Erickson's  failure  to  perform 
his  covenant,  although  that  failure  was  caused  by  the 
unprecedented  drought  which  made  his  performance  impos- 
sible.    *     *     * 

Judgment  reversed.    New  trial  ordered. 


Chapter  XIII 
DISCHARGE  BY  OPERATION  OF  LAW 


CLIFTON  v.  JACKSON  IRON  CO., 

74  Mich.  183  (1889). 

Campbell,  J. :  Plaintiff  sued  defendant  for  trespass 
in  cutting  his  timber  in  the  winter  of  1885-6.  The  defense 
set  up  was  that  the  timber,  though  on  plaintiff's  land,  be- 
longed to  defendant.  This  claim  was  based  on  the  fact 
that  on  September  22,  1877,  a  little  more  than  eight  years 
before  the  trespass,  defendant  made  a  contract  to  sell  the 
land  trespassed  on  to  plaintiff,  but  with  this  reservation : 

"Reserving  to  itself,  its  assigns  and  corporate  successors  the 
ownership  of  pine,  butternut,  hemlock,  beech,  maple,  birch,  iron- 
wood  or  other  timber  suitable  for  sawing  into  lumber  or  for  mak- 
ing into  firewood  or  charcoal,  now  on  said  tract  of  land,  and  also 
the  right  to  cut  and  remove  any  or  all  of  said  timber,  at  its  option, 
at  any  time  within  ten  years  from  and  after  the  date  of  these  pres- 
ents." 

There  were  some  unimportant  provisions,  also,  not  now 
material.  Plaintiff  showed  that  on  November  4,  1885,  the 
defendant  conveyed  to  him  the  land  in  question  by  full 
warranty  deed,  and  with  no  exceptions  or  reservations  what- 
ever. The  testimony  of  defendant's  agent,  who  cut  the 
land  tended  to  prove  that  when  the  cutting  was  done  the 
defendant's  manager  did  not  dispute  plaintiff's  title,  but 
gave  the  agent  to  understand  that  it  belonged  to  plaintiff, 
but  that  some  arrangement  would  be  made  about  it ;  that 
plaintiff  was  then  absent,  and  there  was  no  conversation 
with  him  or  his  wife  on  the  subject.  The  bill  of  exceptions 
certifies  that  no  other  evidence  was  given  concerning  the 
right  to  cut  timber.  Upon  these  facts  the  Court  held  that 
the  deed  conveyed  the  right  in  the  timber  to  plaintiff,  and 
that  he  owned  it. 

(276) 


277 

Had  no  deed  been  made,  it  is  agreed  that  the  reserva- 
tion would  have  prevailed.  But  a  previous  contract  cannot 
contradict  or  control  the  operation  of  a  deed.  It  was  com- 
petent for  defendant  to  relinquish  any  contract  reservation, 
and  a  deed  which  grants  and  warrants  without  any  reser- 
vation has  that  effect.  We  do  not  hold  that  if  the  deed 
were  so  made  by  some  mistake  within  the  cognizance  of 
equity  the  mistake  might  not  be  corrected.  Neither  need 
we  consider  whether,  after  such  a  deed,  there  might  not 
be  such  dealings  as  to  render  such  timber-cutting  lawful, 
by  license,  expressed  or  implied.  In  this  case  there  was  no 
testimony  tending  to  show  that  the  deed  was  not  supposed 
and  intended  to  close  up  all  the  rights  of  the  parties. 

Judgment  affirmed. 


Editor's  Note. — Where  deeds  are  executed  and  accepted  in  per- 
formance of  executory  contracts  to  convey,  the  latter  become  functus 
officio,  and  thenceforth  the  rights  of  the  parties  are  to  be  determined 
by  the  deeds,  and  not  by  the  contracts,  the  presumption  being  that 
the  deeds  give  expression  to  the  final  purposes  of  the  parties ;  and 
the  deeds  will  be  conclusive  unless  it  be  shown  that  the  grantees 
have  been  led  by  fraud  or  mistake  of  fact  to  accept  something  dif- 
ferent from  what  the  executory  contracts  called  for,  in  which  cases 
the  courts  will  give  relief.  Griswold  et  al.  v.  Eastman  et  al.,  51 
Minn.  189. 


Chapter  XIV 
DISCHARGE  BY  BREACH 


Transfer  in  violation  of  contract  obligation 
WOLF  v.  MARSH, 
54Cal.  228  (1880). 

Action  on  an  instrument  in  writing.  Judgment  for 
plaintiff.     Defendant  appeals. 

The  instrument  was  as  follows : 

"Martinez,  November  24,  1866. 
"For  value  received,  I  promise  to  pay  to  S.  Wolf,  or  order, 
four  hudred  and  forty-nine  dollars,  with  interest  at  one  per  cent, 
per  month  from  date  until  paid,  principal  and  interest  payable  in 
United  States  gold  coin.  This  note  is  made  with  the  express  under- 
standing that  if  the  coal  mines  in  the  Marsh  Ranch  yield  no  profits 
to  me,  then  this  note  is  not  to  be  paid,  and  the  obligation  herein 
expressed  shall  be  null  and  void. 

"C.  P.  MARSH." 

On  November  1,  1871,  defendant  conveyed  his  interest 
in  the  ranch  to  one  Williams.  Up  to  that  date  the  mines 
had  yielded  defendant  no  profits. 

Sharpstein,  J. :  *  *  *  Before  the  mines  had 
yielded  any  profits  to  the  defendant,  he  sold  and  conveyed 
his  interest  in  them  to  a  stranger.  By  so  doing  he  volun- 
tarily put  it  out  of  his  power  ever  to  realize  any  profits 
from  the  mines.  However  great  the  yield  of  profits  from 
them  might  be  after  that,  they  could  yield  none  to  him.  And 
the  principle  is  elementary,  that  "if  one  voluntarily  puts  it 
out  of  his  power  to  do  what  he  has  agreed,  he  breaks  his 
contract,  and  is  immediately  liable  to  be  sued  therefor,  with- 
out demand,  even  though  the  time  specified  for  performance 
has  not  expired."     Bishop  on  Cont.  690  (1426). 

That  this  case  is  within  that  principle,  we  do  not  en- 
tertain a  doubt.     When  the   note   was   executed,  the  de- 

(278) 


279 

fendant  was  a  half  owner  of  the  mines,  which  were  leased 
on  such  terms  that  the  production  of  coal  from  them  must 
have  yielded  him  a  profit.  After  making  the  note,  he  vol- 
untarily committed  an  act  which  made  it  impossible  for  the 
contingency  upon  which  the  note  would  become  due  and 
payable  ever  to  arise.  When  he  did  that,  he  violated  his 
contract,  and  the  note  at  once  became  due  and  payable ;  and 
as  this  action  was  commenced  within  four  years  after  that, 
it  follows  that  the  judgment  and  order  of  the  court  appealed 
from  must  be  affirmed. 


Renunciation  of  contract 
WINDMULLER  ET  AL.  v.  POPE  ET  AL., 

107  N.  Y.  674  (1887). 

This  was  an  action  to  recover  damages  for  alleged 
breach  of  contract  to  purchase  a  quantity  of  iron.  Verdict 
for  plaintiffs.    Judgment  affirmed  at  General  Term. 

In  January,  1880,  the  parties  entered  into  a  contract 
for  the  sale  by  plaintiffs  and  purchase  by  defendants  of 
"about  twelve  hundred  tons  old  iron,  Vignol  rails,  for  ship- 
ment from  Europe  at  sellers'  option,  by  sail  or  steam  ves- 
sels to  New  York,  Philadelphia,  or  Baltimore,  at  any  time 
from  May  1  to  July  15,  1880,  at  thirty-five  dollars  per  ton 
*  *  *  deliverable  in  vessels  at  either  of  the  above  ports 
on  arrival."  On  or  about  June  12,  1880,  defendants  noti- 
fied plaintiffs  that  they  would  not  receive  or  pay  for  the  iron, 
or  any  part  of  it,  and  advised  that  plaintiffs  better  stop  at 
once  in  attempting  to  carry  out  the  contract.  Plaintiffs 
thereupon  sold  the  iron  abroad  which  they  had  purchased 
to  carry  out  the  contract. 

Per  Curiam  :  We  think  no  error  is  presented  upon 
the  record  which  requires  a  reversal  of  the  judgment.  The 
defendants  having  on  the  12th  of  June,  1880,  notified  the 


280 

plaintiffs  that  they  would  not  receive  the  iron  rails  or  pay 
for  them,  and  having  informed  them  on  the  next  day  that 
if  they  brought  the  iron  to  New  York  they  would  do  so  at 
their  own  peril,  and  advised  them  that  they  had  better  stop 
at  once  attempting  to  carry  out  the  contract,  so  as  to  make 
the  loss  as  small  as  possible,  the  plaintiffs  were  justified  in 
treating  the  contract  as  broken  by  the  defendant  at  that 
time,  and  were  entitled  to  bring  the  action  immediately 
for  the  breach,  without  tendering  the  delivery  of  the  iron, 
or  awaiting  the  expiration  of  the  period  of  performance 
fixed  by  the  contract ;  nor  could  the  defendants  retract 
their  renunciation  of  the  contract  after  the  plaintiffs  had 
acted  upon  it,  and  by  a  sale  of  the  iron  to  other  parties 
changed  their  position.     Dillon  v.  Anderson,  43  N.  Y.  231 ; 

The  ordinary  rule  of  damages  in  an  action  by  a  vendor 
of  goods  and  chattels,  for  a  refusal  by  the  vendee  to  accept 
and  pay  for  them,  is  the  difference  between  the  contract 
price  and  the  market  value  of  the  property  at  the  time  and 
place  of  delivery. 

Judgment  affirmed. 


Chapter  XV 
DAMAGES  FOR  BREACH  OF  CONTRACT 


Liquidated  damages  and  penalties 

KEMBLE  v.  FARREN, 

6  Bingham  141  (1829). 

Tindal,  C.  J. :  This  is  a  rule  which  calls  upon  the 
defendant  to  show  cause  why  the  verdict,  which  has  been 
entered  for  the  plaintiff  for  £750,  should  not  be  increased 
to  £1000. 

The  action  was  brought  upon  an  agreement  made  be- 
tween the  plaintiff  and  the  defendant,  whereby  the  defend- 
ant agreed  to  act  as  a  principal  comedian  at  the  Theatre 
Royal,  Covent  Garden,  during  the  four  then  next  seasons, 
commencing  October,  1828,  and  also  to  conform  in  all  things 
to  the  usual  regulations  of  the  said  Theatre  Royal,  Covent 
Garden ;  and  the  plaintiff  agreed  to  pay  the  defendant  £3  6s. 
8d.  every  night  on  which  the  theatre  should  be  open  for  the- 
atrical performances,  during  the  next  four  seasons,  and  that 
the  defendant  should  be  allowed  one  benefit  night  during 
each  season,  on  certain  terms  therein  specified.  And  the 
agreement  contained  a  clause,  that  if  either  of  the  parties 
should  neglect  or  refuse  to  fulfill  the  said  agreement,  or  any 
part  thereof,  or  any  stipulation  therein  contained,  such  party 
should  pay  to  the  other  the  sum  of  £1000,  to  which  sum  it 
was  thereby  agreed  that  the  damages  sustained  by  any  such 
omission,  neglect,  or  refusal,  should  amount ;  and  which 
sum  was  thereby  declared  by  the  said  parties  to  be  liquidated 
and  ascertained  damages,  and  not  a  penalty  or  penal  sum- 
or  in  the  nature  thereof. 

The  breach  alleged  in  the  declaration  was,  that  the  de- 
fendant refused  to  act  during  the  second  season,  for  which 

(281) 


282 

breach,  the  jury,  upon  the  trial,  assessed  the  damages  at 
£750;  which  damages  the  plaintiff  contends  ought  by  the 
terms  of  the  agreement  to  have  been  assessed  at  £1000. 

It  is,  undoubtedly,  difficult  to  suppose  any  words  more 
precise  or  explicit  than  those  used  in  the  agreement ;  the 
same  declaring  not  only  affirmatively  that  the  sum  of  £1000 
should  be  taken  as  liquidated  damages,  but  negatively  also 
that  it  should  not  be  considered  as  a  penalty,  or  in  the  nature 
thereof.  And  if  the  clause  had  been  limited  to  breaches 
which  were  of  an  uncertain  nature  and  amount,  we  should 
have  thought  it  would  have  had  the  effect  of  ascertaining 
the  damages  upon  any  such  breach  at  £1000.  For  we  see 
nothing  illegal  or  unreasonable  in  the  parties,  by  their  mu- 
tual agreement,  settling  the  amount  of  damages,  uncertain 
in  their  nature,  at  any  sum  upon  which  they  may  agree.  In 
many  cases,  such  an  agreement  fixes  that  which  is  almost 
impossible  to  be  accurately  ascertained;  and  in  all  cases,  it 
saves  the  expense  and  difficulty  of  bringing  witnesses  to 
that  point.  But  in  the  present  case,  the  clause  is  not  so  con- 
fined; it  extends  to  the  breach  of  any  stipulation  by  either 
party.  If,  therefore,  on  the  one  hand,  the  plaintiff  had 
neglected  to  make  a  single  payment  of  £3  6s.  8d.  per  day,  or 
on  the  other  hand,  the  defendant  had  refused  to  conform 
to  any  usual  regulation  of  the  theatre,  however  minute  or 
unimportant,  it  must  have  been  contended  that  the  clause  in 
question  in  either  case,  would  have  given  the  stipulated  dam- 
ages of  £1000.  But  that  a  very  large  sum  should  become 
immediately  payable,  in  consequence  of  the  non-payment  of 
a  very  small  sum,  and  that  the  former  should  not  be  con- 
sidered as  a  penalty,  appears  to  be  a  contradiction  in  terms ; 
the  case  being  precisely  that  in  which  courts  of  equity 
have  always  relieved,  and  against  which  courts  of  law  have, 
in  modern  times,  endeavored  to  relieve,  by  directing  juries 
to  assess  the  real  damages  sustained  by  the  breach  of  the 
agreement.  It  has  been  argued  at  the  bar,  that  the  liqui- 
dated damages  apply  to  those  breaches  of  the  agreement, 
only  which  are  in  their  nature  uncertain,  leaving  those  which 


283 

are  certain  to  a  distinct  remedy,  by  the  verdict  of  a  jury.  But 
we  can  only  say,  if  such  is  the  intention  of  the  parties,  they 
have  not  expressed  it;  but  have  made  the  clause  relate,  by 
express  and  positive  terms,  to  all  breaches  of  every  kind. 
We  cannot,  therefore,  distinguish  this  case,  in  principle, 
from  that  of  Astley  v.  Weldon,  in  which  it  was  stipulated, 
that  either  of  the  parties  neglecting  to  perform  the  agree- 
ment should  pay  to  the  other  of  them  the  full  sum  of  £200, 
to  be  recovered  in  His  Majesty's  courts  at  Westminster. 
Here  there  was  a  distinct  agreement,  that  the  sum  stipu- 
lated should  be  liquidated  and  ascertained  damages ;  there 
were  clauses  in  the  agreement,  some  sounding  in  uncertain 
damages,  others  relating  to  certain  pecuniary  payments;  the 
action  was  brought  for  the  breach  of  a  clause  of  an  uncer- 
tain nature ;  and  yet  it  was  held  by  the  court,  that  for  this 
very  reason  it  would  be  absurd  to  construe  the  sum  inserted 
in  the  agreement  as  liquidated  damages,  and  it  was  held  to 
be  a  penal  sum  only.  As  this  case  appears  to  us  to  be  de- 
cided on  a  clear  and  intelligible  principle,  and  to  apply  to 
that  under  consideration,  we  think  it  right  to  adhere  to  it, 
and  this  makes  it  unnecessary  to  consider  the  subsequent 
cases,  which  do  not  in  any  way  break  in  upon  it.  The  con- 
sequence is,  we  think  the  present  verdict  should  stand,  and 
the  rule  for  increasing  the  damages  be  discharged. 
Rule  discharged. 


Measure  of  damages 

HADLEY  AND  ANOTHER  v.  BAXENDALE  AND 
OTHERS, 

9  Exchequer  341  (1854). 

*     *     *     At  the  trial  before  Crompton,  J.,  at  the  last 
Gloucester  Assizes,  it  appeared  that  the  plaintiffs  carried  on 


Editor's  Note. — Above  is  a  leading  case  and  is  followed  gen- 
erally in  the  American  cases.    See  Bignall  v.  Gould,  119  U.  S.  495. 


284 

an  extensive  business  as  millers  at  Gloucester,  and  that,  on 
May  11th,  their  mill  was  stopped  by  a  breakage  of  the  crank- 
shaft by  which  the  will  was  worked.  The  steam  engine  was 
manufactured  by  Messrs.  Joyce  &  Co.,  the  engineer,  at 
Greenwich,  and  it  became  necessary  to  send  the  shaft  as  a 
pattern  for  a  new  one  to  Greenwich.  The  fracture  was  dis- 
covered on  the  12th,  and  on  the  13th  the  plaintiffs  sent  one 
of  their  servants  to  the  office  of  the  defendants,  who  are  the 
well-known  carriers  trading  under  the  name  of  Pickford  & 
Company,  for  the  purpose  of  having  the  shaft  carried  to 
Greenwich.  The  plaintiffs'  servants  told  the  clerk  that  the 
mill  was  stopped,  and  that  the  shaft  must  be  sent  immedi- 
ately ;  and  in  answer  to  the  inquiry  when  the  shaft  would  be 
taken,  the  answer  was,  that  if  it  was  sent  up  by  12  o'clock 
any  day,  it  would  be  delivered  at  Greenwich  on  the  follow- 
ing day.  On  the  following  day  the  shaft  was  taken  by  the 
defendants,  before  noon,  for  the  purpose  of  being  conveyed 
to  Greenwich,  and  the  sum  of  £2  4s.  was  paid  for  its 
carriage  for  the  whole  distance ;  at  the  same  time  the  defend- 
ants' clerk  was  told  that  a  special  entry,  if  required,  should 
be  made  to  hasten  its  delivery.  The  delivery  of  the  shaft 
at  Greenwich  was  delayed  by  some  neglect;  and  the  conse- 
quence was,  that  the  plaintiffs  did  not  receive  the  new  shaft 
for  several  days  after  they  would  otherwise  have  done, 
and  the  working  of  their  mill  was  thereby  delayed,  and  they 
thereby  lost  the  profits  they  would  otherwise  have  received. 

On  the  part  of  the  defendants  it  was  objected  that  these 
damages  were  too  remote,  and  that  the  defendants  were  not 
liable  with  respect  to  them.  The  learned  judge  left  the  case 
generally  to  the  jury,  who  found  a  verdict  with  £25  damages 
beyond  the  amount  paid  into  court. 

*  *  *  The  judgment  of  the  court  was  now  deliv- 
ered by 

Alderson,  B. :  We  think  that  there  ought  to  be  a  new 
trial  in  this  case,  but  in  so  doing,  we  deem  it  to  be  expedient 
and  necessary  to  state  explicitly  the  rule  which  the  judge, 
at  the  next  trial  ought,  in  our  opinion,  to  direct  the  jury  to 
be  governed  by  when  they  estimate  the  damages. 


285 

It  is,  indeed,  of  the  last  importance  that  we  should  do 
this,  for  if  the  jury  are  left  wthout  any  definite  rule  to  guide 
them,  it  will,  in  such  cases  as  these,  manifestly  lead  to  the 
greatest  injustice.  The  court-,  have  done  this  on  several 
occasions;  and  in  Blake  v.  Midland  Railway  Company,  21 
L.  J.,  Q.  B.  237,  the  Court  grarned  a  new  trial  on  this  very 
ground,  that  the  rule  had  not  bem  definitely  laid  down  to 
the  jury  by  the  learned  judge  at  mi  prius. 

"There  are  certain  established  rules,"  this  Court  says,  in 
Alder  v.  Keighley,  15  M.  &  W.  11 7, "according  to  which  the 
jury  ought  to  find."  And  the  Coirt,  in  that  case,  adds : 
"And  here  there  is  clear  rule,  that  tht  amount  which  would 
have  been  received  if  the  contract  hadbeen  kept  is  the  meas- 
ure of  damages  if  the  contract  is  broken." 

Now  we  think  the  proper  rule  in.  such  a  case  as  the 
present  is  this :  Where  two  parties  hive  made  a  contract 
which  one  of  them  has  broken,  the  damages  which  the  other 
party  ought  to  receive  in  respect  of  sucl  breach  of  con- 
tract should  be  as  much  as  may  fairly  an4  reasonably  be 
considered  either  arising  naturally — that  is,  according  to  the 
usual  course  of  things  from  such  breach  of  contract  itself, 
or  such  as  may  reasonably  be  supposed  to  have  been  in  the 
contemplation  of  both  parties,  at  the  time  they  made  the 
contract,  as  the  probable  result  of  the  breach  of  it.  Now,  if 
the  special  circumstances  under  which  the  contract  was 
actually  made  were  communicated  by  the  plaintiffs  to  the  de- 
fendants, and  thus  known  to  both  parties,  the  damages 
resulting  from  the  breach  of  such  a  contract,  which  they 
would  reasonably  contemplate,  would  be  the  amount  of 
injury  which  would  ordinarily  follow  from  a  breach  of  con- 
tract under  these  special  circumstances  so  knovn  and  com- 
municated. But,  on  the  other  hand,  if  these  special  cir- 
cumstances were  wholly  unknown  to  the  party  breaking  the 
contract,  he,  at  the  most,  could  only  be  supposed  to  have  had 
in  his  contemplation  the  amount  of  injury  vtfiich  would 
arise  generally,  and  in  the  great  multitude  of  cases  not 
affected  by  any  special  circumstances,  from  such  i  breach  of 


286 

contract.  For  had  the  special  circumstances  been  known 
the  parties  might  have  specially  provided  for  the  breach  of 
contract  by  special  terms  as  to  the  damages  in  that  case ; 
and  of  this  advantage  it  wjuld  be  very  unjust  to  deprive 
them.  Now  the  above  prr.ciples  are  those  by  which  we 
think  the  jury  ought  to  be  guided  in  estimating  the  damages 
arising  out  of  any  breach  of  contract.  It  is  said  that  other 
cases,  such  as  breaches  jf  contract  in  the  non-payment  of 
money,  or  in  the  not  miking  a  good  title  to  land,  are  to  be 
treated  as  exceptions  f.'om  this,  and  as  governed  by  a  con- 
ventional rule.  But  as,  in  such  cases,  both  parties  must  be 
supposed  to  be  cognzant  of  that  well-known  rule,  these 
cases  may,  we  think,  be  more  properly  classed  under  the 
rule  above  enunciated  as  to  cases  under  known  special  cir- 
cumstances, because  there  both  parties  may  reasonably  be 
presumed  to  cont-molate  the  estimation  of  the  amount  of 
damages  accordiig  -O  the  conventional  rule.  Now,  in  the 
present  case,  if  we  are  to  apply  the  principles  above  laid 
down,  we  find  that  the  only  circumstances  here  communi- 
cated by  the  ulainaffs  to  the  defendants  at  the  time  the  con- 
tract was  rrude,  were,  that  the  article  to  be  carried  was  the 
broken  shift  of  a.  mill,  and  that  the  plaintiffs  were  the  mil- 
lers of  t^at  mill.  But  how  do  these  circumstances  show  rea- 
sonably that  the  profits  of  the  mill  must  be  stopped  by  an 
unreasonable  deiay  in  the  delivery  of  the  broken  shaft  by 
the  carrier  to  the  third  person?  Suppose  the  plaintiffs  had 
another  shaft  in  their  possession  put  up  or  putting  up  at  the 
time,  and  that  they  only  wished  to  send  back  the  broken 
shaft  to  the  engineer  who  made  it;  it  is  clear  that  this 
would  be  qiite  consistent  with  the  above  circumstances, 
and  yet  the  unreasonable  delay  in  the  delivery  would  have 
no  effect  u«>n  the  intermediate  profits  of  the  mill.  Or 
again,  suppose  that,  at  the  time  of  the  delivery  to  the  car- 
rier, the  machinery  of  the  mill  had  been  in  other  respects 
defective,  tnen  also  the  same  results  would  follow.  Here  it 
is  true  that  the  shaft  was  actually  sent  back  to  serve  as  a 
model  for  a  new  one,  and  that  the  want  of  a  new  one  was 


287 

the  only  cause  of  the  stoppage  of  the  mill,  and  that  the 
loss  of  profits  really  arose  from  not  sending  down  the  new 
shaft  in  proper  time,  and  that  this  arose  from  the  delay  in 
delivering  the  broken  one  to  serve  as  a  model.  But  it  is 
obvious  that,  in  the  great  multitude  of  cases  of  millers  send- 
ing off  broken  shafts  to  third  persons  by  a  carrier  under 
ordinary  circumstances,  such  consequences  would  not,  in  all 
probability,  have  occurred  and  these  special  circumstances 
were  here  never  commmunicated  by  the  plaintiffs  to  the  de- 
fendants. It  follows,  therefore,  that  the  loss  of  profits  here 
cannot  reasonably  be  considered  such  a  consequence  of  the 
breach  of  contract  as  could  have  been  fairly  and  reasonably 
contemplated  by  both  the  parties  when  they  made  this  con- 
tract. For  such  loss  would  neither  have  flowed  naturally 
from  the  breach  of  this  contract  in  the  great  multitude  of 
such  cases  occurring  under  ordinary  circumstances,  nor  were 
the  special  circumstances,  which,  perhaps  would  have  made 
it  a  reasonable  and  natural  consequence  of  such  breach  of 
contract,  communicated  to  or  known  by  the  defendants. 
The  judge  ought,  therefore,  to  have  told  the  jury  that,  upon 
the  facts  then  before  them,  they  ought  not  to  take  the  loss 
of  profits  into  consideration  at  all  in  estimating  the  dam- 
ages. There  must,  therefore,  be  a  new  trial  in  this  case. 
Rule  absolute. 


Measure  of  damages 

THEIS  v.  WEISS, 

166  Pa.  9  (1895). 

Appeal  from  a  verdict  for  plaintiff.  Assumpsit  to 
recover  damages,  for  failure  to  deliver  flour  under  contract 
in  writing.     Contract  is  as  follows:    Pitts.  Aug.  4,  1891. 


Editor's  Note. — Above  is  a  leading  case  and  is  followed  gen- 
erally in  the  American  cases. 


288 

Messrs.  Theo.  Weiss  sold  Peter  Theis  100  cars  of  straight 
flour  to  be  delivered  on  Peter  Theis'  order,  cars  to  contain 
200  barrels  each,  each  car  of  flour  to  be  equal  to  Theis  and 
Kuegle  and  Co.  flour,  to  be  delivered  two  cars  per  day. 
Pay  sight  draft  with  bill  of  lading  attached,  price  to  be  $4.00 
per  barrel  bulk.  Signed  Theodore  Weiss.  Witness  C.  Mc- 
Master. 

Opinion.  The  plaintiff  testified  on  the  trial  positively 
and  directly  that  he  sold  all  the  flour  he  bought  from  the 
defendant  to  various  firm  and  individuals  immediately  after 
the  contract  in  suit  was  made.  He  also  said  he  was 
obliged  to  purchase  the  flour  to  fill  these  orders.  He  was 
permited  to  prove  and  did  prove  the  low  price  of  the  flour 
during  the  time  he  was  making  the  sales.  He  admitted, 
however,  that  he  got  most  of  the  flour  with  which  to  fill 
these  orders  from  his  home  field.  The  defendant  asked  the 
plaintiff  what  the  flour  he  thus  obtained  cost  him  and 
whether  he  made  or  lost  money  on  the  flour  he  obtained  to 
fill  these  orders.  Court  rejected  these  offers  of  proof ;  and 
the  assignment  of  error  to  the  rejection  of  the  offers  and 
to  what  the  Court  below  said  on  the  question  of  measure  of 
damages  give  rise  to  the  question,  what  is  the  true  measure 
of  damages  applicable  to  the  facts  in  the  case.  The  Court 
charged  that  it  was  the  difference  between  the  contract 
price  named  in  the  contract  in  suit  and  the  market  price  of 
the  same  grade  of  flour  at  the  time  and  place  of  delivery. 
There  is  no  doubt  that  this  is  the  general  rule  in  cases  where 
the  vendor  of  goods  refuses  to  deliver  and  no  part  of  the 
price  has  been  paid.  But  the  defendant  contends  that 
the  rule  is  this  ;  where  the  vendee  supplies  himself  with  other 
goods  in  order  to  fill  orders  which  he  has  taken  for  the  re- 
sale of  the  goods  which  he  contracted  to  receive  from  the 
vendor. 

In  2  Benj.  on  Sales,  Sec.  1327,  the  writer  says:  "It  is 
submitted  that  these  decisions  establish  the  following  rules 
in  cases  where  goods  have  been  bought  for  the  purpose  of 


289 

resale  and  there  is  no  market  in  which  the  buyer  can  read- 
ily obtain  them : 

"First,  if  at  the  time  of  the  sale  the  existence  of  a  sub- 
contract is  made  known  to  the  seller  the  buyer  on  the  sel- 
lers' default  in  delivering  the  goods  has  two  courses  open 
to  him.  He  may  elect  to  fulfill  his  sub-contract  and  the 
market  would  purchase  the  best  substitute  obtainable  charg- 
ing the  seller  with  the  difference  between  the  .contract  price 
of  the  goods  and  the  price  of  the  goods  substituted. 

"Second,  he  may  elect  to  abandon  his  sub-contract  and 
in  that  case  he  may  recover  as  damages  against  the  seller 
his  loss  of  profits  on  the  sub-sale  and  any  penalties  he  may 
be  liable  to  pay  for  breach  of  sub-contract.     *     *     * 

"In  every  case  the  buyer,  to  entitle  him  to  recover  the 
full  amount  of  damages,  must  have  acted  throughout  as  a 
reasonable  man  of  business  and  done  all  in  his  power  to  miti- 
gate the  loss."  "The  value  of  the  article  at,  or  about  the 
time  is  to  be  delivered  for  the  measure  of  damages  in  a 
suit  by  the  vendee  against  the  vendor  for  a  breach  of  the 
contract.     *     *     * 

"It  is,  therefore,  proper  to  inquire  into  the  true  legal 
idea  of  damages  in  order  to  determine  the  proper  definition 
of  the  term  value.  Except  in  those  cases  where  oppression, 
fraud,  malice  or  negligence  enter  into  the  question  the  de- 
clared object  is  to  give  compensation  to  the  party  injured 
for  the  actual  loss  sustained." 

Kounts  v.  Kirkpatrick,  72  Pa.  376,  and  authorities 
there  cited.  The  true  rule  said  C.  J.  Gibson  is  to  give  actual 
compensation  by  graduating  the  amount  of  damages  exactly 
to  the  extent  of  the  loss. 

Forsyth  v.  Palmer,  2  Harris  97.  In  Haskell  v.  Hunter 
23  Mich.  305,  it  was  held  that  in  an  action  for  the  non-de- 
livery of  lumber  the  true  measure  of  damages  is  the  differ- 
ence between  the  contract  price  and  what  it  would  have  cost 
the  plaintiff  to  protect  it  at  the  place  of  delivery  and  at  the 
time  or  times  when  it  was  reasonably  proper  for  them  to 
supply  themselves  with  the  lumber  of  the  kind  and  quality 


290 

they  were  to  receive  under  the  contract.  We  are  therefore 
of  the  opinion  that  the  defendant  should  have  been  allowed 
to  prove  what  was  the  actual  cost  to  the  plaintiff  of  the 
flour  which  the  plaintiff  said  he  bought  from  other  parties 
to  fill  his  orders. 

Judgment  reversed  and  a  new  venire  ordered. 


Equitable  relief  from  breach  of  contract 

PHILADELPHIA  BALL  CLUB  v.  LAJOIE, 

202  Pa.  210. 

Bill  in  equity  for  an  injunction. 

Potter,  J. :  The  defendant  in  this  case  contracted  to 
serve  the  plaintiff  as  a  baseball  player  for  a  stipulated 
time.  During  that  period  he  was  not  to  play  for  any  other 
club.  He  violated  this  agreement,  however,  during  the  term 
of  his  engagement  and  in  disregard  of  his  contract  arranged 
to  play  for  another  and  a  rival  organization.  Plaintiff  by 
means  of  this  bill,  sought  to  restrain  him  during  the  period 
covered  by  the  contract.  The  Court  below  refused  the  in- 
junctions, holding  that  to  warrant  the  interference  prayed 
for  "the  defendant's  services  must  be  unique,  extraordinary 
and  of  such  a  character  as  to  render  it  impossible  to  replace 
him ;  so  that  his  breach  of  contract  would  result  in  irrepar- 
able loss  to  the  plaintiff."  In  the  view  of  the  Court  the  de- 
fendant's qualifications  did  not  measure  up  to  this  high 
standard.  We  think  that  in  refusing  relief  unless  the  de- 
fendant's services  were  shown  to  be  of  such  a  character  as  to 
render  it  impossible  to  replace  him  the  Court  has  taken 
extreme  ground.  It  seems  to  us  that  a  more  just  and  equit- 
able rule  was  laid  down  in  Pomeroy  on  specific  perform- 
ance, p.  31,  where  the  principle  is  thus  declared:  "Where 
one  person  claims  to  render  personal  services  to  another 
which  require  and  presuppose  a  special  knowledge,  skill  and 


291 

ability  in  the  employee,  so  that  in  case  of  default  the  same 
service  could  not  easily  be  obtained  from  others.  Although 
the  affirmative  specific  performance  of  the  contract  is  beyond 
the  power  of  the  court  its  performance  will  be  negatively 
enforced  by  enjoying  the  breach.     *     *     * 

The  damages  for  breach  to  such  a  contract  cannot  be 
estimated  with  any  certainty  and  the  employer  cannot  by 
means  of  any  damages  breach  the  same  service  in  the  labor 
market.  The  Court  below  finds  from  the  testimony  that 
the  defendant  is  an  expert  baseball  player  in  any  position ; 
that  he  has  a  great  reputation  as  second  baseman;  that  his 
place  would  be  hard  to  fill  with  as  good  a  player,  that  his 
withdrawal  from  the  team  would  weaken  it  as  would  the 
withdrawal  of  any  good  player,  and  would  probably  make  a 
difference  in  the  size  of  the  audiences  attending  the  game." 

In  addition  to  these  features,  which  render  his  serv- 
ices of  peculiar  and  special  value  to  the  plaintiff  and  not 
easily  replaced,  Lajoie  is  well  known  and  has  a  great  reputa- 
tion among  the  patrons  of  this  sport  and  ability  in  the  posi- 
tion which  he  filled,  and  was  thus  a  most  attractive  drawing 
card  for  the  public.  He  may  not  be  the  sun  in  the  base- 
ball firmament,  but  he  is  certainly  a  bright  star.  We  feel, 
therefore,  that  the  evidence  in  this  case  justifies  the  con- 
clusion that  the  services  of  defendant  are  of  such  unique 
character  and  display  knowledge,  skill  and  ability  as  renders 
them  of  peculiar  value  to  the  plaintiff  and  so  difficult  of 
substitution  that  their  loss  will  produce  irreparable  injury 
in  the  legal  significance  of  that  term,  to  the  plaintiff.  The 
action  of  the  defendant  in  violating  this  contract  is  a  breach 
of  good  faith  for  which  there  would  be  no  adequate  redress 
at  all,  and  the  case  therefore  properly  calls  for  the  aid  of 
equity  in  negatively  enforcing  the  performance  of  the  con- 
tract by  enjoining  against  its  breach.  But  the  Court  below 
was  also  of  the  opinion  that  the  contract  was  lacking  in  mu- 
tuality of  remedy  and  considered  that  as  a  controlling  rea- 
son for  the  refusal  of  an  injunction.  In  the  contract  now 
before  us  the  defendant  agrees  to  furnish  skilled  profes- 


292 

sional  services  to  the  plaintiff  for  a  period  which  might  ex- 
tend over  three  years  by  proper  notice  given  before  the 
close  of  each  current  year.  Upon  the  other  hand,  the  plain- 
tiff retains  the  right  to  terminate  the  contract  upon  ten 
days'  notice  and  the  payment  for  salary  for  that  time  and  the 
expense  of  defendant  in  getting  from  his  home.  But  the  fact 
of  this  concession  of  the  plaintiff  is  distinctly  pointed  out  as 
part  of  the  consideration  for  a  large  salary  paid  to  the 
defendant  and  is  emphasized  as  such.  We  are  not  persuaded 
that  the  terms  of  this  contract  manifest  any  lack  of  mutual- 
ity and  remedy  each  party  as  a  possibility  of  enforcing  all 
the  rights  stipulated  for  in  the  agreement.  We  can  agree 
that  mutuality  of  remedy  requires  that  each  party  should 
have  precisely  the  same  remedy  either  in  form,  effect  or 
extent  in  a  fair  and  reasonable  contract  in  order  to  be  sufrt- 
cent;  that  each  party  has  the  possibility  of  compelling  the 
performance  of  the  promises  which  were  mutually  agreed 
upon.  The  defendant  sold  to  plaintiff  for  a  valuable  con- 
sideration the  exclusive  right  for  the  professional  services 
for  a  stipulated  period  unless  sooner  surrendered  by  the 
plaintiff;  which  could  only  be  after  due  and  reasonable 
notice  and  payment  of  salary  and  expenses  until  the  expira- 
tion. Why  should  not  the  Court  of  Equity  protect  such  an 
agreement  until  it  is  terminated?  The  Court  cannot  com- 
pel the  defendant  to  play  for  the  plaintiff,  but  it  can  re- 
strain him  from  playing  for  another  club  in  violation  of  his 
agreement.  No  reason  is  given  why  this  should  not  be 
done  except  that  presented  by  the  argument  that  the  right 
given  to  plaintiff  to  terminate  the  contract  upon  ten  days' 
notice  destroys  the  mutuality  of  the  remedy.  Substantial 
justice  between  the  parties  require  that  the  Court  should 
restrain  the  defendant  from  playing  for  any  other  club 
during  his  term  contract  with  the  plaintiff. 

Decree  of  the  Court  below  reversed  and  bill  reinstated. 

Editor's  Note. — Among  the  other  remedies  which  may  be  obtained 
in  courts  of  equity  are  decrees  compelling  the  specific  performance  of 
contracts,  and  decrees  compelling  the  reformation,  recission,  or  can- 
cellation of  contracts.  Briefly  stated,  the  jurisdiction  of  courts  of 
equity  is  to  grant  redress  in  cases  where  the  ordinary  remedy  of  an 
action  for  damages  in  a  court  of  law  would  be  inadequate. 

Illustrations. — A.  agreed  to  convey  certain  land  to  B.  and  then 
refused  to  do  so.  At  law  the  only  remedy  would  be  an  action  for 
damages.  In  equity  the  promissor  could  be  compelled  to  convey 
the  land. 

C.  in  conveying  land  to  D.  incorrectly  described  the  land.  D. 
could  by  bill  in  equity  compel  C.  to  execute  a  reformed  deed,  whereas 
at  law  he  would  only  have  an  action  for  damages.  See  Bispham  on 
Equity. 


APPENDIX  I 


COPYRIGHT,  1903 
BY  THE  AMERICAN  LAW  BOOK  COMPANY 


The  outline  which  follows  is  reproduced  by  permission  of  the 
American  Law  Book  Co.  The  parts  of  this  outline  on  the  subjects 
of  "Conflict  of  Laws"  and  "Actions  for  Breach  of  Contract"  have 
been  omitted.  Under  the  head  of  the  "Parties,"  there  has  been 
inserted  parts  of  the  outlines  on  "Infants,"  "Insane  Persons"  and 
"Married  Women"  given  under  separate  articles  in  "Cyc."  The 
outline  on  "Infants"  was  written  for  "Cyc."  by  John  Walker  Mac- 
grath.  that  on  "Insane  Persons"  by  Henry  F,  Buswell,  and  that  on 
'Married  Women"  by  William  L.  Burdick. 


CONTRACTS 


By  John  Davison  Lawson 
Dean  of  Law  Department,  University  of  Missouri* 
I.  DEFINITION 

A.  Contract  Defined 

B.  Express,  Implied,  and  Quasi  or  Constructive  Contracts 

1.  Express  Contracts 

2.  Implied  Contracts 

3.  Quasi  or  Constructive  Contracts 

C.  Executory  and  Executed  Contracts 

D.  Promise  Defined 

E.  Agreement  Defined 

F.  Bilateral  and  Unilateral  Contracts 

G.  Commutative  Contracts 
H.  Compact  Defined 

II.  AGREEMENT  OR  MUTUAL  ASSENT 

A.  Necessity  For 

B.  Essentials  of  Agreement  in  General 

1.  Two  or  More  Parties 

2.  Common  Intention 

a.  In  General 

b.  Expressed  Intention  and  Secret  Intention 

Differing 

c.  Communication  of  Intention 

(i)   Necessity  For 
(n)   Intention  Communicated  Informally 

C.  Offer  and  Acceptance 

1.  In  General 

2.  Offer 

a.  Definition 

b.  Forms  of  Offer 

(i)   In  General 
(n)  Offer  of  Promise  For  Assent 


♦Author  of  "Rights,  Remedies  and  Practice,  at  Law,  in  Equity 
and  Under  the  Codes,"  "Lawson's  Bailments,"  "Lawson's  Contracts." 
"Lawson's  Expert  and  Opinion  Evidence,"  "Lawson's  Presumptive 
Evidence,"  "Lawson's  Usages  and  Customs,"  "Lawson's  Defenses  to 
Crime,"  "Lawson's  Concordance,"  etc.,  etc. 

(295) 


296 

(in)  Offer  of  Act  For  Promise 
(iv)  Offer  of  Promise  For  Act 
(v)  Offer  of  Promise  For   Promise 

c.  Certainty  of   Offer 

(i)   In  General 

(n)  No   Uncertainty  if    Intention   Can   Be 
Ascertained 

d.  Terms  of  Offer 

(i)   In  General 
(n)  Unexpressed  Terms 

(a)  In  General 

(b)  Usages  and  Customs  of  Trade 
(hi)   Terms  Not  Appearing  on  Face  of  Offer 

e.  Communication  of  Offer 

(i)   In  General 

(11)   Performance    of    Services    and    Other 
Acts  Without  Request  or  Knowledge 
(m)   Performance    of    Services    and    Other 
Acts  Without  Knowledge  of  Offer 
3.  Acceptance  of  Offer 

a.  Necessity  For 

b.  Who  May  Accept 

(i)   Particular  Offers 
(n)   General  Offers 

c.  Forms  of  Acceptance 

(i)  Acceptance  by  Assent 
(11)  Acceptance  by  Promise 
(hi)   Acceptance  by  Act 
(rv)  Acceptance  by  Silence 
(v)  Acceptance  by  Signing    Paper    Con- 
taining  Offer 
(vi)  Acceptance  by  Accepting    Paper    Con- 
taining Terms 

(a)  In  General 

(b)  Paper   Not  Purporting  to   Be  a 

Contract 

(c)  Terms   Not   Readily   Discernible 

(d)  Terms  Unreasonable 

(e)  Where  Case  Is  One  of  General 

Notice 

(f)  Notice    Received    After    Agree- 

ment 


297 

d.  Sufficiency  of  Acceptance 

(i)   Conditions  Prescribed  by  Offer 

(a)  In  General 

(b)  Conditions  as  to  Time  of  Accept- 

ance 

(c)  Conditions   as   to    Place   of    Ac- 

ceptance 

(d)  Conditions   as   to   Mode   of   Ac- 

ceptance 
(n)  Acceptance  Conditionally  or  on  Terms 

Varying  From  Offer 
(in)   Offerer's  Acceptance  of  Conditional  or 
Varying  Acceptance 

e.  Communication  of  Acceptance 

(i)  In  General 
(n)  Acceptance  by  Act 
(in)   Acceptance  by  Promise 
(iv)   Meaning  of  Communicated 

4.  Intention  to  Effect  Legal  Relations 

a.  In  General 

b.  Social  Engagements 

c.  Jokes  or  Jests 

d.  Statements  of   Intention   and   Promissory  Ex- 

pressions 

e.  Proposals  to  Deal 

f.  Advertisements  of  Goods  For  Sale 

g.  Invitations  to  Bid 

h.  Railroad  and  Steamship  Time-Tables 
i.   Advertisement  of  Auction  Sales 
j.   Advertisement  of  Theaters  and  Shows 
k.  Announcement   of   Examination   For    Scholar- 
ship 
1.   Negotiations  Looking  to  Formal  Contract 

5.  Revocation  of  Offer  or  Acceptance 

a.  Of  Offer 

(i)  After  Acceptance 
(n)   Before  Acceptance 
(m)  Offer  Giving  Time  For  Acceptance 
(iv)   Consideration   For   Giving  Time 

(v)  Offer  Under  Seal 

(a)  In  General 

(b)  Options  Under   Seal 

b.  Revocation  of  Acceptance 


298 

c.  Communication  of  Revocation, 
(i)   In  General 
(n)  General  Offers 

6.  Lapse  of  Offer 

a.  By  Rejection,  Conditional  or  Varying  Accept- 

ance or  Counter  Offer 

b.  By  Lapse  of  Time 

(i)   In   General 
(n)   Questions  of  Law  and  Fact 

c.  By  Death  or  Insanity 

d.  By  Change  of  Circumstances 

7.  Offer  and  Acceptance  by  Post  or  Telegraph 

a.  In  General 

b.  When  Offer  Is  Complete 

c.  Acceptance  by  Post  or  Telegraph 

d.  Agreement  Concluded  When  Acceptance  Posted 

or  Telegraphed 

e.  Letter  Must  Be  Properly  Stamped,  Addressed, 

and  Posted 

f.  Offer  Requiring  Actual  Receipt  of  Acceptance 

g.  Revocation  of  Offer 

h.  Post  Office  Regulations  as  to  Reclaiming  Let- 
ters 

III.  FORMAL  REQUISITES 

A.  Seal 

B.  Writing 

1.  Necessity  For 

2.  Where  Writing  Essential  Outside  of  Statutes 

3.  Form  of  Language 

4.  Agreement  in  Several  Writings 

5.  Agreement  Partly  Written  and  Partly  Oral 

C.  Signing 

1.  Necessity  For 

2.  Agreement    Signed   by   One   and   Adopted   by   the 

Other 

3.  Parties  Signing  Bound 

4.  Mode  of  Signing 

5.  Signing  by  Procurement  or  Adoption 

D.  Delivery 

E.  Date 

F.  Leaving  Blanks  in  Writing 


299 

IV.  CONSIDERATION 

A.  Definition 

B.  Necessity  For  Consideration 

1.  In  General 

2.  Contracts  in  Writing 

3.  Contracts  Under  Seal 

4.  Gratuitous  Bailment. 

5.  Statutory  Obligations 

C  Presumption  of  Consideration 

1.  Negotiable  Instruments 

2.  Written  Contracts  Generally 
D.  What  Constitutes  a  Consideration 

1.  In  General 

2.  Illustrations  of  Sufficient  Consideration 

3.  Need  Not  Be  Money  or  Money  Value 

4.  Benefit  to  Third  Person 

5.  What  Is  Not  a  Consideration 

a.  In  General 

b.  Illustrations  of  No  Consideration 

c.  Promise  to  Make  Gift 

d.  Promise  to  Pay  Money 

e.  Promise  to  Pay  Debt  of  Third  Person 

6.  Good  and  Valuable  Consideration  Distinguished 

7.  Motive  and  Consideration  Distinguished 

8.  Marriage  and  Promise  to  Marry 

9.  Executed  and  Executory  Consideration 

a.  In  General 

b.  Acceptance  of  Executed  Consideration 

c.  Consideration  Executed  Upon  Request 
10.  Mutual  Promises 

a.  In  General 

b.  Promises  Must  Be  Concurrent 

c.  Promise  Must  Impose  Legal  Liability 

d.  Promise  Must  Be  Certain 

e.  Promise  Must  Be  Legal 

f.  Performance  Must  Be  Possible 

(i)  In  General 
(n)   Physical  Impossibility 
(in)   Legal  Impossibility 

g.  Promise  May  Be  Conditional 
h.  Mutuality 

(i)   In  General 
(n)   Subscriptions 

(a)  Mutual  Promises 

(b)  Implied  Agreement  to  Perform 

(c)  Actual  Performance 


300 

(in)   Mutuality  May  Be  Implied 
(iv)  Executed  Contracts 
(v)   Mutuality  Subsequently  Present 
(vi)  Options  Founded  on  Consideration 
(vii)  Writings  Signed  by  One  Party  Only 
11.  Waiver  of  Legal  Right  and  Forbearance 

a.  In  General 

b.  Illustrations  of  Waiver  of  Right  or  Forbear- 

ance 

c.  Forbearance  to  Sue 

(i)  In  General 

(n)  Different    Views    as    to   Existence    of 
Right  to  Sue 

(a)  View  That  Right  Must  Be  Per- 

fect 

(b)  View  That  Right  Must  Be  Reas- 

onably Doubtful 

(c)  Claims  Clearly  Unenforceable 

(d)  View  That  Claim  Must  Be  Bona 

Fide 

d.  Right  May  Be  Against  Third  Person 

e.  Promise  to  Forbear  and  Actual  Forbearance 

f.  Mutual  Promises  to  Forbear 

g.  Time  of  Forbearance 
h.  Compromise  of  Claims 

i.   Abandonment  or  Discontinuance  of   Proceed- 
ings 
j.   Discharge  From  Custody  Under  Writ 
k.  Relinquishment  of  Defenses  or  Rights  in  Suit 
12.  Promise  to  Do  or  Doing  What  Promisor  Is  Bound 
to  Do 

a.  In  General 

b.  Subsisting  Obligation  in  Law 

c.  Subsisting  Contractual  Obligation 

(i)   In  General 
(n)  Anomalous  Views 

(a)  Right  Either  to  Perform  or  Pay 

Damages 

(b)  Evidence  of  Mutual  Rescission 

(c)  Both  Contracts  in  Force 

(d)  Unforeseen  Difficulties  and  Mis- 

take 
(in)  Exceptions 

(a)  Matters  Outside  of  Contract 

(b)  Moral  Obligation 

(c)  Substituted  Agreement 


301 

d.  Existing  Contractual  Obligation  to  Third  Per- 

son 

e.  Part-Payment  of  Debt  and  Agreement  to  Dis- 

charge Residue 
(i)   In  General 
(n)   Compositions  With  Creditors 

13.  Moral  Obligation 

14.  Past  Consideration 

a.  In  General 

b.  Previous  Request 

c.  Moral  Obligation 

(i)  In  General 
(n)  Moral  Obligation  Founded  on  Previous 

Benefit  to  Promisor 
(in)   Moral   Obligation   Founded  on   Fraud 
or  Duress 

d.  Promise    in    Pursuance    of    Previous    Under- 

standing 

e.  Subsidiary  Promises 

f.  Consideration  Partly  Past  and  Partly  Present 

or  Executory 

g.  Pre-Existing  Liability. 

h.  Former  Promise  Unenforceable  by  Act  of  Law 
(i)   In  General 
(n)   Statute  of  Limitations 
(hi)   Bankruptcy  or  Insolvency  Laws 
(iv)   Contracts  of  Married  Women 
(v)   Contracts  of  Infants  and  Insane  Per- 
sons 
(vi)  Contracts   Unenforceable   Under   Law 
Since  Repealed 
i.   Incurring  Legal  Liability  at  Request 
j.   Voluntarily  Doing  What   Promisor  Is   Bound 

to  Do 
k.  Consideration  Expressed  in  Past  Tense 

E.  Adequacy  of  Consideration 

1.  In  General 

2.  Exceptions 

a.  In  General 

b.  In  Equity 

F.  Necessity  For  Consideration  to  Appear  on  Writing 

G.  Contradicting  Statement  of  Consideration 
H.  Failure  of  Consideration 

1.  In  General 

2.  Partial  Failure  of  Consideration 

3.  Subsequent    Depreciation    in    Value 


302 

V.  PARTIES 

A.  Two  or  More  Parties  Essential 

B.  Capacity  to  Contract 

C.  Parties  Entitled  to  Enforce  Contract 

1.  In  General 

2.  Where  False  Representation  Is  Made 

3.  Where  Breach  of  Duty  Is  Connected  with  Contract 

4.  Promise  For  the  Benefit  of  Third  Persons 

a.  Doctrine  That  Third  Person  Cannot  Sue 

(i)  In  General 
(n)   Exceptions 

(a)  Trust 

(b)  Quasi  Contract 

(c)  Near  Relationship 

(d)  Agency 

(e)  Novation 

b.  Doctrine  That  Third  Person  Can  Sue 

(i)   In  General 

(n)  Limits    to    the    Doctrine    That    Third 
Person  May  Sue 

(a)  In  General 

(b)  Contract  Under  Seal 

(c)  Contract  Must  Be  Binding 

(d)  Failure    of    Consideration    and 

Rescission  of  Contract 

D.  Parties  Against  Whom  Contracts  May  Be  Enforced 

1.  In  General 

2.  Assignees  and  Representatives 

3.  Principals  and  Agents 

4.  Ratification  by  Receipt  of  Benefits 

5.  Contract  May  Impose  Duty  on  Third  Persons 

E.  Persons  Not  Having  Full  Contractual  Ability 

1.  Infants 

a.  Who  are  Infants 

(i)   Definition 
(n)  Age  of  Majority 

(a)  In  General 

(b)  When  Age  Deemed  Attained 

(c)  What  Law  Governs 

b.  Privileges  and  Disabilities 

(i)   Privileges 

(a)  Immunity    From    Prejudice    by 

Lapse  of  Time  or  Laches 

(b)  Immunity  From  Estoppel 


303 

(n)  Disabilities 

(a)  In  General 

(b)  Appointment    by   Agent    or    At- 

torney 

(c)  Acting  as  Agent 

(d)  Acting  as  Trustee 

(e)  Eligibility    to    Public    Office    or 

Employment 

(f)  Acting  as  Common  Informer 

(g)  Exercising  Right  of  Election 
(h)  Admissions 

(i)    Removal  of  Disabilities 

1.  Emancipation  by  Act  of 

Parent 

2.  Emancipation  by  Marriage 

3.  Judicial  Emancipation 
Contracts 

(i)   Capacity  to  Contract 

(a)  In  General 

(b)  Whether   Contracts   Void   or 

Voidable 

(c)  Executed    and    Executory    Con- 

tracts 

(d)  Contracts  by  Person  Acting  For 

Infant 

(e)  Contracts  of  Infant  as  Agent  or 

Trustee 

(f)  Contracts     Pursuant     to     Legal 

Obligation 

(g)  Contracts  Pursuant  to  Statutory 

Authority 

(h)  Where  Contract  on  Part  of 
Adult  Legally  Compulsory 

(i)  Where  Infant  Engaged  in  Busi- 
ness 

1.  In  General 

2.  Partnership 

(j) Contracts  Jointly  With  Adults 
(n)   Particular  Acts  and  Contracts  Consid- 
ered 

(a)  Accounts  Stated 

(b)  Bills  and  Notes 

(c)  Bonds 

(d)  Charter-Parties 

(e)  Compromises  and  Settlements 


304 

(f)  Gambling   Contracts 

(g)  Life  Insurance 

(h)  Loans  and   Advances 
(i)    Necessaries 

1.  General  Rule 

2.  Credit  Must  Be  Given  to  In- 

fants 

3.  Express  Contracts 

4.  Executory  Contracts 

5.  What  Are  Necessaries 

6.  Where  Infant  Already  Suffi- 

ciently Supplied 

7.  Where  Infant  Has  an  Allow- 

ance 

8.  Where    Infant    Has    Parents 

or  Guardian 

9.  Loans     and     Advances     For 

Necessaries 

10.  Necessaries     of     Wife     and 

Family 

11.  Question  of  Law  and  Fact 

12.  Burden  of   Proof 

13.  Amount  of  Recovery 
(j)  Releases 

(k)  Services 

(l)   Submission   to   Arbitration 

(m)  Subscription  to  Corporate  Stock 

(n)  Suretyship 

(o)  Warranty 

(in)  Liability  of  Infant  Husband  For  An- 
tenuptial Debts  of  Wife 

(rv)  Liability  of  Infants  For  Interest 
(v)  Ratification  of  Contracts 

(a)  Power  to  Ratify 

(b)  Time  For  Ratification 

1.  After  Arrival  at  Majority 

2.  Ratification  After  Commence- 

ment of  Action 

(c)  Necessity  For  Ratification 

(d)  Requisites  to  Valid  Ratification 

1.  Ratification  Must  Be  Volun- 

tary 

2.  New  Consideration 

3.  Whether  Writing  Necessary 

4.  Knowledge  of  Non-Liability 


305 

(e)  Conditional  Ratification 

(f)  Partial   Ratification 

(g)  What  Constitutes  Ratification 

1.  In  General 

2.  Acquiescence    or    Failure    to 

Disaffirm 

3.  Retention     of     Disposal     of 

Property  or  Consideration 
(h)  Evidence 
(i)    Effect  of  Ratification 
(vt)  Avoidance  of  Contracts 

(a)  Right  to  Avoid 

1.  In   General 

2.  Who  May  Avoid 

3.  Estoppel  to  Disaffirm 

(a)  In  Genera! 

(b)  False     Representations 

as  to  Age 

(b)  Time  For  Avoidance 

1.  During  Minority 

2.  Reasonable  Time  After  Ma- 

jority 

(c)  Necessity   For   Disaffirmance 

(d)  What  Constitutes  Avoidance 

(e)  Return  of  Property  or  Consid- 

eration 

(f)  Effect  of  Avoidance 

1.  In  General 

2.  Recovery  of  What  Was  Paid 

or  Parted  With 

3.  Recovery    on    Avoidance    of 

Contract  for  Services 
F.  Torts 

1.  Liability  in  General 

2.  Acts  Under  Orders  of  Parent  or  Guardian 

3.  Acts  of  Agent  or  Servant 

4.  Torts  Connected  With  Contracts 

5.  Age  of  Infant 
Insane  Persons 

1.  Property  and  Conveyances 

A.  Capacity  to  Take  and  Hold  Property 

B.  Capacity  to  Convey  Property 

C.  Validity  of  Conveyances 

D.  Affirmance  of  Conveyances 

E.  Avoidance  of  Conveyances 


306 

2.  Contracts 

A.  Validity 

1.  In  General 

2.  Whether  Contracts  Are  Void  or  Voidable 

3.  Effect  of  Inquisition  and  Guardianship 

4.  Valid  Contracts 

a.  Contracts  Created  by  Law 

b.  Necessaries 

c.  Ignorance   and   Good   Faith   of   Other 

Party 

B.  Nature  and  Extent  of  Incapacity 

1.  In  General 

2.  Deaf  and  Dumb  Persons 

3.  Temporary  and  Periodical  Insanity 

4.  Monomania  or  Insane  Delusions 

C.  Ratification  and  Avoidance 

1.  In  General 

2.  Return  of  Consideration 

3.  Avoidance  as  Against  Third  Persons 

3.  Torts 

A.  In  General 

B.  Liability  For  Libel  or  Slander 

C.  Measure  of  Damages 

Mamqed  Women 
1.  Contracts 

A.  Capacity  to  Contract  in  General 

1.  Common  Law,  Equity,  and  Statutory  Rules 

2.  What  Law  Governs 

3.  Duty  of  Third  Persons  to  Take  Notice 

4.  Implied  Contracts 

B.  Particular  Classes  of  Contracts 

1.  Lease  From  Third  Person 

2.  Lease  to  Third  Person 

3.  Employment  of  Counsel 

4.  Employment   of    Servant 

5.  Contract  For  Wife's  Services 

6.  Necessaries 

7.  Loans 

8.  Bills   and   Notes 

9.  Purchases  and  Sales 

10.  Guaranty   or    Suretyship 

11.  Releases  and  Receipts 

C.  Instruments  Under   Seal 


307 

D.  Ratification  of  Contracts 

1.  After  Dissolution  of  Coverture 

2.  Ratification  by  Estoppel 

3.  Ratification  by  Husband 

E.  Avoidance  of  Contracts 

F.  Antenuptial    Contracts 
2.  Property  and  Conveyances 

A.  Capacity  to  Take  and  to  Hold  Property 

B.  Capacity  to  Convey 

C.  Requisites  and  Validity  of  Conveyances 

1.  In  General 

2.  Joinder  of  Husband  in  Deed 

D.  Gifts 

E.  Ratification 

1.  By  Act  of  Party 

2.  By  Statute 

F.  Avoidance 

1.  Grounds 

2.  Who  May  Avoid 

VI.  REALITY  OF  CONSENT 

A.  In  General 

B.  Mistake 

1.  Definition 

2.  Effect  in  General 

3.  Agreement  Presumed  From  Assent 

4.  Effect  of  Signing  Written  Instrument 

a.  In  General 

b.  Person  Unable  to  Read 

c.  Fraud 

d.  Substituted  Document 

5.  Effect  of  Accepting  Paper  Containing  Terms 

6.  Mistake  of  Expression  and  Reformation 

a.  In  General 

b.  Evidence  Required 

7.  Mistake  of  One  Party  Only 

a.  In  General 

b.  As  to  Value,  Quality,  and  Other  Collateral  At- 

tributes 

c.  In  Motive  or  Expectation 

d.  Of  One  Party  Caused  by  the  Other 

e.  Of  One  Party  Known  to  the  Other 

8.  Mutual  Mistake 

a.  As  to  Material  Facts 

b.  As  to  Extrinsic  Facts 


308 

c.  When  Facts  Doubtful  and  Parties  Assume  Risk 

d.  As  to  Terms  of  Agreement 

(i)   Offer  and  Acceptance  Not  Identical 
(n)   Where  Terms  of  Agreement  Are  Not 
Ambiguous 

e.  As  to  Existence  of  Subject-Matter 

(i)   In  General 
(n)   Absolute   Unconditional   Agreement 

f.  As  to  Identity  of  Party 
9.  Mistake  of  Law 

a.  General  Rule 

b.  Exceptions 

(i)   In  General 
(n)   Fraud,  Undue  Influence,  and  Abuse  of 

Confidence 
(in)   Foreign  Laws 
10.  Remedies 

C.  Misrepresentation  Without  Fraud 

1.  In  General 

a.  At  Law 

b.  In  Equity 

2.  Contracts  of  Special  Nature 

a.  In  General 

b.  Particular  Contracts 

3.  Parties  in  Fiduciary  or  Confidential  Relations 

4.  Terms  or  Conditions  in  Contract 

5.  Estoppel 

6.  Remedies 

D.  Fraud 

1.  Definition 

2.  What  Constitutes  Fraud 

a.  In  General 

b.  Failure  to  Disclose  Facts 

(i)   In  General 

(ii)  Active  Concealment  or  Non-Disclosure 
(in)  Where  There  Is  a  Duty  to  Disclose 

c.  Representation  of  Opinion 

d.  Representation  of  Intention  or  Expectation 

e.  Representation  of  Law 

f.  Fraud  of  Third  Party  Inducing  Contract 

g.  Knowledge  and  Intent 

(i)  Knowledge  of  Falsity  of  Representa- 
tion 
(a)  In  General 


309 

(b)  Representation   Not  Believed  to 

Be  True 

(c)  Representation  Unreasonably  Be- 

lieved to  Be  True 

(d)  Representation   Subsequently  Be- 

coming False 
(n)  Intent 

(a)  That   Representation    Be   Acted 

Upon 

(b)  Intent  to  Defraud 
h.  Materiality  of  Representation 

(i)   In   General 

(n)  Representation  as  to  One  of  Several 
Matters 
i.   Reliance  on  Representation 
(i)  In  General 

(n)  Party  Relying  on  His  Own  Judgment 
(m)  Representation  Known  to  Be  False 
(rv)  Lapse  of  Time 
(v)  Right  to  Reply  on  Representations 

(a)  In  General 

(b)  Where  Means  of  Knowledge  Are 

at  Hand 
j.  Damage  Must  Be  Shown 
3.  Effect  of  Fraud 

a.  Contract  Voidable  and  Not  Void 

b.  Remedies  of  Party  Defrauded 

(i)  Affirming    Contract    and    Suing    For 

Damages 
(n)  Rescission  of  Contract 

(a)  Rescinding  and  Suing  For  Dam- 

ages 

(b)  Recovery  of  Money  or  Property 

(c)  Setting  Up  Fraud  as  a  Defense 

(d)  Rescission     or     Cancellation    in 

Equity 

(e)  Suing  For  Breach 
(in)   Reformation  in  Equity 
(iv)   Contracts  Under  Seal 

(v)  Fraud  in  Obtaining  Release 
C.  Limitations  to  Right  to  Rescind 
(i)  Mode  of  Election 
(n)  Laches 

(in)  Ratification  by  Acceptance  of  Benefits 
or  Otherwise 


310 

(iv)   Parties  Must  Be  Placed  in  Statu  Quo 
(v)  Contract  Must  Be  Rescinded  in  Toto 
(vt)  Restoring  Consideration 

(a)  In  General 

(b)  Exceptions   to   Rule 

(vn)  Rescission  as  Against  Third  Persons 

E.  Duress 

1.  Definition 

2.  Effect 

3.  Common-Law  Divisions  of  Duress 

a.  In  General 

b.  Duress  of  Imprisonment 

c.  Duress  Per  Minas 

(i)   In    General 
(n)  Threats  of  Imprisonment 
(in)  Threats  of  Injury  to  Property 

d.  What  Is  Not  Legal  Duress 

4.  The  Modern  Equitable  Rule 

a.  The  Old  Rule 

b.  Modification  of  Rule 

c.  The  Modern  Doctrine 

d.  Threats  of  Bodily  Harm 

e.  Threats  of  Injury  to  Property 

(i)  In  General 

(n)   Parties  Not  at  Arm's  Length 
(in)  Lack  of  Consideration 

5.  Who  Must  Impose  Duress 

6.  Upon  Whom  Duress  Must  Be  Imposed 

F.  Undue  Influence 

1.  Definition 

2.  Equity  Jurisdiction 

3.  Classification 

4.  Due  and  Undue  Influence  Distinguished 

5.  Presumption  of  Undue  Influence 

6.  Particular  Relations 

a.  Family  Relations 

b.  Confidential  Relations 

(i)   Guardian  and  Ward 
(n)  Trustees  and  Cestui  Que  Trust 
(in)  Attorney  and  Gient 
(rv)   Spiritual  Advisers  and  Spirit  Mediums 

(v)   Physician  and  Patient 
(vi)   Persons  Engaged  to  Marry 
(vii)  Other  Confidential  Relations 


311 

c.  Mental  Weakness 

d.  Persons  Unable  to  Read  or  Write 

e.  Necessity  and  Distress 

7.  Inadequacy  of  Consideration 

8.  Right  to  Rescind  and  Limitation 

a.  In  General 

b.  Delay  or  Laches 

VII.  ILLEGALITY 

A.  In  General 

B.  What  Agreements  Are  Illegal 

1.  In  General 

2.  Agreements  in  Violation  of  Positive  Law 

a.  In  General 

b.  Agreements  in  Violation  of  Rules  of  Common 

Law 
(i)  Agreements  Involving  Commission  of 

Crime 
(n)  Agreements  With  Alien  Enemies 
(in)  Agreements  Involving  Civil  Wrong 
(rv)  Agreemeents  to  Defraud  Individuals 
(v)  Agreements    to    Defraud    the    Public 

Generally 
(vi)  Frauds  on  Sellers  and  Bidders  at  Auc- 
tions 
(vii)  Frauds  on  Creditors 
(vm)  Agreements  by  Agents,  Trustees,  and 
Others  in  Fiduciary  or  Confidential 
Capacities 
(ix)  Agreements  to  Waive  Fraud 

c.  Agreements  in  Violation  of  Statutes 

(i)   In  General 

(n)  Statutes  Merely  Imposing  a  Penalty 
(in)   Statutes  Requiring  License  to  Engage 

in  Profession,  Trade,  or  Business 
(iv)   Statutes    Regulating   Dealings    in   Ar- 
ticles of  Commerce 
(v)  Waiver    of    Statutory    Provisions    by 

Agreement 
(vi)  Omission   of   Penalty   For   Prohibited 

Act 
(vii)  Agreements    Prohibited    but    Declared 
Not  Void 


312 


3.  Agreements  Contrary  to  Public  Policy 

a.  In  General 

b.  History 

c.  Sources 

d.  Public  Policy  Varies  With  Time  and  Place 

e.  Federal  Courts 

f.  Particular     Agreements     Contrary    to     Public 

Policy 
(i)  In  General 

(n)  Interference   With   Administration   of 
Government 

(a)  In  General 

(b)  Interference     With     Legislative 

Action 

(c)  Interference  With  Executive  or 

Administrative  Action 

(d)  Interference     With     Pardoning 

Power 

(e)  Interference  With   Appointment 

of  Public  Officers 

(f)  Interference  With  Fees  or  Emol- 

uments of  Public  Officers 

(g)  Interference     With     Duties     of 

Quasi-Public  Corporations 
(h)  Interference  With  Elections 
(i)    Interference    With     Courts    of 

Justice 

(1)  In  General 

(2)  Compounding  Offenses 

(a)  In  General 

(b)  The  Agreement  Not  to 

Prosecute 

(c)  Proof  of  Commission 

of  Crime 

(d)  Offenses   Which   May 

Be  Compromised 
aa.  In  General 
bb.  Bastardy 

(3)  Ousting  Jurisdiction  of 

Courts 

(4)  Reference  to  Arbitration 

(5)  Limiting  Right  to  Prosecute 

or  Defend  Civil  Action  or 
Proceeding 
(6)  Champerty  and  Maintenance 


313 

(in)   Injury  to  or  Violation  of  Laws  of  For- 
eign State 
(iv)  Aiding  Public  Enemy 
(v)  Agreements  Against  Good  Morals 
(vi)  Agreements    Affecting    Marital    Rela- 
tions 

(a)  Restraint  of  Marriage 

(b)  Marriage  Brokage  Contracts 

(c)  Agreeements  to  Dissolve  Marital 

Relations 

(d)  Agreements  For  Separation 

(e)  Agreements  to   Resume   Marital 

Relations 

(f)  Frauds  Upon  Marital  Rights 
(vn)  Agreements  in  Restraint  of  Trade 

(a)  In  General 

(b)  The  Early  English  Law 

(c)  The  Later  Doctrine  With  Its  Di- 

visions 

(1)  In  General 

(2)  Restraint    Unlimited   as    to 

Both  Time  and  Space 

(3)  Restraint     Limited     as     to 

Time  But  Unlimited  as  to 
Space 

(4)  Restraint     Limited     as     to 

Space  But  Unlimited  as  to 
Time 

(5)  Restraint     Limited     as     to 

Both  Time  and  Space 

(d)  The  Modern  Doctrine  of  Reas- 

onableness of  Restraint 

(1)  In   General 

(2)  Agreements  Held  Valid 

(3)  Agreements  Held  Void 

(4)  The  Question  of  Public  In- 

terest in  Such  Cases 

(e)  Restrictions  on  Use  of  Patents 

(f)  Restrictions   on    Sale  of   Trade- 

Marks  or  Trade-Names 

(g)  Restrictions   on    Sale   of    Secret 

Process 
(h)  Other    Agreements     Restricting 

Liberty  of  Doing  Business 
(i)    Consideration  For  Contract 


314 

(j)    Proof 

(k)  Statutory  Provisions 
(viii)   Other    Agreements    Injuring    Personal 
Rights 
(ix)  Agreements  Affecting  Duties   Toward 
Third  Persons 

(a)  In   General 

(b)  Agreements  Affecting  Duties  of 

Parents 

(c)  Agreements      of      Quasi-Public 

Corporations 

(d)  Agreements     Exempting     From 

Liability  For   Negligence 

(e)  Agreements  to  Make  Will 
C.  Effect  of  Illegality 

1.  In  General 

2.  Exceptions  to  the  General  Rule 

a.  In  General 

b.  Where  Public  Policy  Requires  Intervention  of 

Court 

c.  Where  Parties  Are  Not  in  Pari  Delicto 

d.  Where  One  Party  Is  Protected  By  the  Law 

e.  Where  Illegal  Purpose  Is  Not  Consummated 

f.  Where  Party  Complaining  Can  Establish  Case 

Without  Relying  on  Illegal  Transaction 

g.  Person    in    Possession    of    Profits    of    Illegal 

Transaction 
(i)  In  General 

(n)  Agents  and  Partners  in  Illegal  Enter- 
prises 
h.  Recovery  by  Agent  Against  Principal 

3.  Right  of  Third  Party  to  Set  up  Illegality 

4.  Form  of  Illegal  Agreement 

5.  New  Agreement  on  Same  Consideration  Void 

6.  Securities  Given  in  Illegal  Transaction 

7.  New  Agreement  on  New  Consideration 

8.  Effect  of  Illegal  Agreement  on  Prior  Legal  One 

9.  Consideration  or  Promise  Wholly  Illegal 

10.  Consideration  Legal  But  Promise  Partly  Illegal 

11.  Consideration  Partly  Illegal  or  Several  Considera- 

tions Some  of  Which  Are  Illegal 

12.  Promises  and  Considerations  Severable 

13.  Intention 

a.  Unlawful  Intention  on  Both  Sides 
(i)  In  General 
(n)  When  the  Rule  Does  Not  Apply 


315 

b.  Unlawful  Intention  on  One  Side  Only 

c.  Mere    Knowledge    of    Unlawful    Intention    of 

Other  Party 
(i)   In  General 

(n)   Contemplated   Illegal  Act  Highly  Im- 
moral or  Heinous 
(in)  Where  Illegal  Purpose  is  in  View 
(iv)   Money  Loaned 

(v)  Where  Party  Aids  in  Illegal  Purpose 
D.  Conflict  of  Laws  as  to  Time 

1.  In  General 

2.  Agreement    Illegal    When    Made    But    Afterward 

Legalized 

3.  Agreement  Legal  When  Made  But  Afterward  Pro- 

hibited 

VIII.  CONSTRUCTION 

A.  In  General 

B.  Intention  of  Parties 

1.  In  General 

2.  Secret  Intention 

3.  Words  to  Be  Taken  in  Ordinary  Sense 

4.  Preliminary  Negotiations 

5.  Whole  Contract  Looked  At 

6.  Several  Writings  Construed  Together 

7.  Papers  Referred  to  or  Annexed  to  Contract 

C.  Implied  Terms 

1.  In  General 

2.  Custom  or  Usage 

3.  Law  of  Place  Implied 

D.  Words  and  Clauses 

1.  All  Words  to  Be  Considered 

2.  Meaning  of  Particular  Words 

3.  Technical  Words 

4.  Repugnant  Words 

5.  Inconsistent  and  Conflicting  Clauses 

6.  Writing  and  Printing 

7.  Expressio  Unius 

8.  General  and  Specific  Descriptions 

9.  Recitals 

10.  Clerical  Errors  and  Omissions 

11.  Surplusage 

E.  Grammatical   Construction 

1.  In  General 

2.  Punctuation 


316 

F.  Construction  to  Uphold  Contract  and  to  Exclude  Fraud 

1.  Valid  Rather  Than  Invalid 

2.  Construction  as  Legal  Rather  Than  Illegal 

3.  Good  Faith  and  Bad  Faith 

G.  Reason  and  Equity 

1.  In  General 

2.  Where  Meaning  Not  Uncertain 

H.  Nature   and    Objects   of    Agreement   and    Situation  of 

Parties 
I.    Construction  of  Parties 

1.  In  General 

2.  Where  Meaning  Not  Uncertain 

3.  Opinion  Not  Carried  Into  Effect 

J.    Construction  Against  Party  Using  Words 
K.  Law  and  Fact 

IX.  DISCHARGE 

A.  Modes  of  Discharge 

B.  Discharge  by  Agreement 

1.  By  New  Agreement 

a.  In  General 

b.  Sufficiency  of  Agreement  and  Consideration 

c.  Substituted  Agreement 

(i)   In  General 
(n)   Effect  as  to  Third  Parties 

d.  Novation 

e.  Implied  Rescission 

(i)  Inconsistent  Subsequent  Agreement 
(n)  Lapse  of  Time 

f.  Form  of  New  Agreement 

(i)   Contracts  Under  Seal 

(a)  In  General 

(b)  Parol  Contract  at  Variance  With 

Sealed  Contract 

(c)  Parol  Agreement  Acted  On 
(n)  Written  Contract  Not  Under  Seal 

(a)  In  General 

(b)  Contracts    Required    by    Statute 

to  Be  in  Writing 

2.  Non-Fulfilment  of  Term  in  Contract 

a.  Condition  Subsequent 

b.  Occurrence  of  Particular  Event 

c.  Option  to  Determine  Contract 


317 

C.  Discharge  by  Performance 

1.  Promise  on  Executed  Consideration 

2.  Contract  Wholly  Executory 

3.  Strict  and  Substantial  Performance 

a.  At  Common  Law 

b.  In  Equity 

c.  Intentional  or  Material  Departure 

d.  Recovery  For  Benefits  Received 

4.  Time  of  Performance 

a.  Where  Time  Is  Fixed  by  Contract 

(i)   In  General 
(n)  Time  of  Essence  or  Not 

(a)  In  General 

(b)  At  Common  Law 

(c)  In  Equity 

(d)  Waiver  and  Estoppel 

(in)   Construction  of  Agreement  as  to  Time 

b.  Where  No  Time  Is  Fixed  by  Contract 

(i)   In  General 
(n)  What  Is  a  Reasonable  Time 

5.  Performance  of  Conditional  Promises 

a.  In   General 

b.  Conditional  Upon  Time 

c.  Conditional  Upon  Future  Event 

d.  Conditional  Upon  Specified  Fund 

e.  Conditional  Upon  Request  or  Demand 

f.  Conditional  Upon  Notice 

g.  Conditional  Upon  Act  or  Will  of  Third    Per- 

son 
h.  Conditional  Upon  Act  or  Will  of  Promisor 
i.   Performance  to  Satisfaction  of  Promisor 
(i)   In  General 

(n)  Cases  of  Fancy,  Taste,  or  Judgment 
(in)  Cases    of    Operative    Fitness    or    Me- 
chanical Utility 
(a)   In  General 
(n)   Conflicting  Decisions 
(iv)   Bad  Faith 

(v)   Condition  a  Suspensory  One 
(vi)   Waiver  of  Condition 

6.  Discharge  by  Payment  or  Tender 

D.  Discharge  by  Impossibility  of  Performance 
1.  In  General 


318 

2.  Impossibility  Known  to   Both  Parties  at  Time  of 

Contracting 

3.  Impossibility  at  Time  of  Contracting  Not  Known 

to  Either  Party 

4.  Impossibility   at   Time   of    Contracting   Known   to 

One  Party  Only 

5.  Subsequent  Impossibility  of  Performance 

a.  In  General 

b.  Impossibility  Created  by  Law 

c.  Existence   or   Capacity  of   Specific   Person   or 
Thing 

6.  Impossibility  in  Case  of  Alternative  Promises 

E.  Discharge  by  Operation  of  Law 

1.  In  General 

2.  Merger 

3.  Alteration  of  Written  Instrument 

4.  Discharge  in  Bankruptcy 

F.  Discharge  by  Breach 

1.  In  General 

2.  Modes  of  Discharge  by  Breach 

3.  Renunciation  of  Liability 

a.  Before  Performance  Is  Due 

(i)  In  General 
(n)  Limitations  to  Rule 

(a)  Renunciation  Must  Be  Entire 

(b)  Must  Be  Distinct  and  Unequivo- 

cal 

(c)  Contract  Must  Be  Bilateral 

(d)  Renunciation  May  Be  Rejected 

(e)  Renouncing  Party  Cannot  Force 

Acceptance 

(f)  Other  Party  Cannot  Proceed  and 

Complete  Contract 

b.  Renunciation   of   Liability   in   Course   of    Per- 

formance 

4.  Impossibility  of  Performance  Created  by  Party 

5.  Discharge  by  Failure  to  Perform 

a.  In  General 

b.  When  Promises  Are  Dependent  and  When  In- 

dependent 
(i)  In  General 
(u)   Independent  Promises 
(in)  Dependent  and  Conditional  Promises 


319 

c.  Part-Performance  of  Conditions  Precedent 

d.  Performance  of  Conditions  Precedent  Waived 

or  Discharged 
(i)  In  General 

(n)  Acts  Not  Constituting  a  Waiver 
(m)  Party   Disabling   Himself   From    Per- 
forming 

e.  Alternative   Promises   and   Election 

f.  Divisible  Promises 

(i)  In  General 
(n)   Repudiation  of  Contract 
(m)  Express  Provision  For  Discharge 
g.  Subsidiary  Promises 

X.  JOINT  AND  SEVERAL  CONTRACTS 

A.  The  Different  Kinds  of  Promises 

1.  In  General 

2.  Promises  on  One  Side  Only 

3.  Promises  on  Both  Sides 

B.  Distinction  Between  Rights  and  Obligations 

C.  Several  Contracts 

1.  Promisors 

2.  Promisees 

3.  Survivorship 

4.  Joint  Action  Will  Not  Lie 

D.  Joint  Contracts 

1.  Promisors 

a.  In  General 

b.  Survivorship 

c.  Effect  of  Release 

d.  Effect  of  Judgment 

e.  Suit  Must  Be  Against  All 

2.  Promisees 

a.  In  General 

b.  Survivorship 

c.  Payment  or  Release 

E.  Joint  and  Several  Contracts 

1.  Promisors 

a.  In  General 

b.  Union  of  Joint  and  Several  Liabilities 

c.  Liable  Altogether  or  Singly 

d.  Both  Remedies  Available  Until  Satisfaction 

2.  Promisees 


320 

Construction  of  Such  Contracts 

1.  Intention  of  Parties 

2.  Presumption  That  Promises  Are  Joint 

3.  Promisor's  Liability  Governed  by  Intent 

4.  Promisee's   Rights   Governed  by   Interest 

a.  In  General 

b.  Baron  Parke's  Rule  of  Interest 

c.  Legal  Interest 

d.  Higher  Interest 

5.  Singular  and  Plural  Number 

6.  Several  Promises 

7.  Joint  Promises 

8.  Joint  and  Several  Promises 


APPENDIX  II 


GLOSSARY 


Action 

Ad  litem 
Aggregatio  mentium 

Appellant 
Appellee 

Assumpsit 

Bill  of  Exceptions 


Bill  in  Equity 


Caveat  emptor 


Certiorari 


Compiled  from 

Bouvier's  Law  Dictionary 
By  Wendell  P.  Raine 

Suit— The  legal  and  formal  demand  of 
one's  rights  from  another  person  or  party 
made  and  insisted  on  in  a  court  of  jus- 
tice. 

For  the  suit;  for  the  purpose  of  the  suit; 
pending  the  suit. 

The  meeting  of  minds.  The  moment  when 
a  contract  is  complete. 

The  party  in  a  cause  who  takes  the  appeal. 

The  party  in  a  cause  against  whom  an  ap- 
peal has  been  taken. 

He  undertook;  he  promised.  A  promise  or 
engagement  by  which  one  person  assumes 
or  undertakes  to  do  some  act  or  pay 
something  to  another.  It  may  be  either 
oral  or  written. 

A  written  statement  of  objections  to  the 
decisions  of  the  court  upon  points  of  law, 
made  by  one  of  the  parties. 

A  complaint  in  writing  addressed  to  the 
Chancellor  containing  a  statement  of  fact 
upon  which  the  plaintiff  relies  and  the 
allegations  which  he  makes  with  an  aver- 
ment that  the  acts  complained  of  are  con- 
trary to  equity  and  containing  a  prayer 
for  relief  and  the  issuance  of  proper 
process. 

Let  the  buyer  take  care.  Purchaser  of 
an  article  must  examine,  judge  and  test 
it  for  himself,  being  bound  to  discover 
any  obvious  defects  or  imperfections. 

A  writ  issued  by  a  superior  to  an  inferior 
court  requiring  the  latter  to  send  in  to 
the  former  some  proceeding  therein  pend- 
ing or  the  record  and  proceedings  in 
some  cause  already  terminated. 
(323) 


324 


Chattel  Mortgage 


Constructive  contract 


Decree  reversed 
Defendant 

Defendant  in  error 

Demurrer 

Demurrer  and  Joinder 


Error 


Exceptions  Overruled 


Express  contract 


An  instrument  of  sale  of  personalty  con- 
veying the  title  of  the  property  to  the 
mortgagee  with  terms  of  defeasance. 

A  contract  which  has  not  the  character  as- 
signed to  it  in  its  own  essential  nature, 
but  acquires  such  character  in  conse- 
quence of  the  way  in  which  it  is  regarded 
by  a  rule  or  policy  of  law ;  hence,  in- 
ferred, implied,  made  out  by  legal  in- 
terpretation. 

The  reversing  of  the  judgment  of  the  lower 
court. 

The  person  defending  or  denying;  the  party 
against  whom  relief  or  recovery  is  sought 
in  an  action  or  suit. 

The  distinctive  term  appropriate  to  the 
party  against  whom  a  writ  of  error  is 
sued  out. 

An  objection  made  by  one  party  to  his  op- 
ponent's pleading,  alleging  that  he  ought 
not  answer  it,  for  some  defect  in  law  in 
the  pleading.  It  admits  properly  pleaded 
facts. 

Demurrer  as  above.  Joinder  means  the  join- 
ing or  coupling  together;  uniting  two  or 
more  constituents  or  elements  in  one ; 
uniting  with  another  person  in  some  legal 
step  or  proceeding.  In  this  connection 
joining  of  issue. 

A  mistaken  judgment  or  incorrect  belief 
as  to  the  existence  or  effect  of  matters  of 
fact,  or  a  false  or  mistaken  conception  or 
application  of  the  law  (e.  g.,  error  on  the 
part  of  the  court  in  admitting  certain  evi- 
dence.) 

Exception  by  an  attorney  is  a  formal  ob- 
jection to  the  action  of  the  court  during 
trial.  Overruled  on  argument — court  re- 
fuses to  overturn  its  action. 

When  the  agreement  of  the  parties  is  defi- 
nite and  formal,  and  is  stated  either  ver- 
bally or  in  writing. 


325 


Feme  Covert 


Fi.  Fa. 


Foro  conscientiae 
A  fortiori 


Functus  officio 


Implied  contract 

Indebitatus  assumpsit 

Ad.  Infinitum 
In  loco  parentis 

Judgment 


Judgment  affirmed 


Judgment  on  the 

Verdict 
Judgment  reversed 


A  married  woman.  Generally  used  in  ref- 
erence to  the  legal  disabilities  of  a  mar- 
ried woman  as  compared  with  the  con- 
dition of  a  feme  sole. 

A  writ  directing  the  sheriff  to  seize  the 
goods  of  a  judgment  debtor,  and  sell  the 
same  for  the  purpose  of  satisfying  the 
judgment. 

The  conscience. 

By  a  strong  reason.  A  term  used  in  logic 
to  denote  an  argument  to  the  effect  that 
because  one  ascertained  fact  exists  there- 
fore another  which  is  included  in  it,  or 
analogous  to  it,  and  which  is  less  improb- 
able, unusual  or  surprising,  must  also 
exist. 

Having  fulfilled  the  function,  discharged 
the  office,  or  accomplished  the  purpose, 
and  therefore  of  no  further  force  or  au- 
thority. 

When  the  terms  have  to  be  gathered  by  in- 
ference and  deduction  from  facts  or 
conduct. 

Action  on  contract.  Brought  for  the  most 
part  on  an  implied  promise. 

That  which  is  endless. 

In  the  place  of  a  parent.  Instead  of  a  par- 
ent; charged  fictitiously  with  a  parent's 
rights,  duties  and  responsibilities. 

The  decision  given  by  a  court  as  the  result 
of  proceedings  instituted  therein  for  the 
redress  of  an  injury.  The  jury  finds  what 
the  redress  ought  to  be;  the  judgment  is 
the  decision  or  sentence. 

Judgment  affirmed  means  to  have  the  judg- 
ment of  a  lower  court  approved  by  a 
higher  court. 

The  verdict  is  the  finding  of  the  jury  as 
to  matters  of  fact. 

The  decision  of  the  lower  court  was  dis- 
approved or  disallowed  by  the  higher 
court  to  which  the  case  was  appealed. 


326 


Liability 


Locus  Sigilli 


Mesne 


Motion  for  new  trial 


New  Trial  Awarded 


Nisi  Prius 


Nominal 

Non  assumpsit 

Non  compos  mentis 
Non-suit 

Non  sui  juris 


The  state  of  being  bound  or  obliged  in  law 
to  pay,  or  make  good  something :  Legal 
responsibility. 

The  place  of  the  seal :  the  place  occupied  by 
the  seal  on  written  instruments.  Usually 
abbreviated  to  "L.  S." 

Intermediate,  intervening,  the  middle  be- 
tween two  extremes,  especially  of  rank 
or  time.  An  intermediate  lord ;  a  lord 
who  stood  between  a  tenant  and  the  chief 
lord.     Intermediate  transfers. 

A  written  application  for  an  order  ad- 
dressed to  the  court  to  permit  a  new  trial 
to  be  had. 

An  order  directing  the  re-examination  of 
an  issue  of  fact  in  the  same  court  after 
a  trial  and  decision  by  a  jury  or  court 
or  by  referees. 

The  nisi  prius  courts  are  such  as  are  held 
for  the  trial  of  issues  of  fact  before  a 
jury  and  one  presiding  judge.  Used  to 
denote  the  forum  in  which  the  cause  was 
tried  before  a  jury  as  distinguished  from 
the  appellate  court. 

Titular:  existing  in  name  only;  not  real 
or  substantial;  connected  with  the  trans- 
action or  proceeding  in  name  only,  not  in 
interest. 

A  plea  to  the  general  issue  in  the  action  of 
assumpsit.  A  plea  by  which  the  defend- 
ant avers  that  "he  did  not  undertake  or 
promise  as  alleged." 

Not  sound  of  mind ;  insane ;  embraces  all 
varieties  of  mental  derangement. 

Order  by  the  court  dismissing  a  case  after 
the  plaintiff's  evidence  is  in,  that  evidence 
being  insufficient  to  warrant  a  verdict  for 
plaintiff,  regardless  of  what  testimony 
might  be  produced  by  the  defendant. 

Not  his  own  master. 


327 


Nudum  Pactum 


Obiter  dictum 


A  naked  act;  a  bare  agreement;  a  promise 
or  undertaking  made  without  any  con- 
sideration for  it. 


Obiter  means  by  the  way;  in  passing;  in- 
cidentally, collaterally.  Dictum  means  a 
statement,  remark  or  observation.  An 
assertion  of  a  principle  by  the  court  not 
pertinent  to  the  issue  involved. 

Pari  delicto  melior  est  In  a  case  of  equal  or  mutual  fault,  between 
conditio  defendentis  two  parties,  the  condition  of  the  party  in 
possession,  or  defending  is  the  better  one. 
Where  each  party  is  equally  in  fault,  the 
law  favors  him  who  is  actually  in  pos- 
session. 


Particeps  Criminis 


Per  Curiam 


Per  minas 


Per  my  et  per  tout 


Perse 


Plaintiff 


Plaintiff  appeals 


A  participant  in  a  crime ;  an  accomplice,  one 
who  shares  or  co-operates  in  a  criminal 
offence,  tort,  or  fraud. 

By  the  court,  used  in  the  reports  to  distin- 
guish an  opinion  of  the  whole  court  from 
an  opinion  written  by  any  one  judge. 
Sometimes  it  denotes  an  opinion  written 
by  the  chief  justice  or  presiding  judge. 

Duress  per  minas  consists  in  threats  of  im- 
prisonment or  great  physical  injury  or 
death. 

By  the  half  and  by  the  whole.  The  mode  in 
which  joint  tenants  hold  the  joint  estate, 
the  effect  of  which,  technically  consid- 
ered, is  that  for  purposes  of  tenure  and 
survivorship,  each  is  the  holder  of  the 
whole,  but  for  purposes  of  alienation  each 
has  only  his  own  share,  which  is  pre- 
sumed in  law  to  be  equal. 

By  himself  or  itself ;  in  itself ;  taken  alone ; 
inherently;  in  isolation;  unconnected 
with  other  matters. 

A  person  who  brings  an  action;  the  party 
who  complains  or  sues  in  a  personal 
action  and  is  so  named  on  the  record. 

When  the  plaintiff  is  dissatisfied  with  the 
decision  and  asks  for  a  hearing  in  a 
higher  court. 


328 


Plaintiff  in  error 

Pleadings 

Prima  facie 
Prospective 


Pro  tanto 
Quantum  meruit 


Quid  pro  quo 


Qui  tacet  consentire 
videtur 

Replevin 


Respondent 
Retorno  habendo 

Scienter 


A  party  who  sues  out  a  writ  of  error;  and 
this  whether  in  the  court  below  he  was 
plaintiff  or  defendant. 

The  statement  of  the  parties  in  writing  in 
legal  and  proper  manner  covering  the 
causes  of  action  and  grounds  of  defence. 

Means  such  as  in  judgment  of  law  is  suf- 
ficient to  establish  the  fact. 

Looking  forward ;  contemplating  the  fu- 
ture; a  law  is  said  to  be  prospective  (as 
opposed  to  retrospective)  when  it  is  ap- 
plicable only  to  cases  which  shall  arise 
after  its  enactment. 

For  so  much ;  for  as  much  as  may  be. 

As  much  as  he  deserved.  The  common 
count  in  an  action  of  assumpsit  for  work 
and  labor,  founded  on  an  implied  assump- 
sit, or  promise,  on  the  part  of  the  defend- 
ant to  pay  the  plaintiff  as  much  as  he 
reasonably  deserved  to  have  for  his  labor. 

What  for  what;  something  for  something; 
used  in  law  for  the  giving  of  one  valuable 
thing  for  another ;  nothing  more  than  the 
mutual  consideration  which  passes  be- 
tween the  parties  to  a  contract  and  which 
renders  it  valid  and  binding. 

He  who  is  silent  is  supposed  to  consent 
The  silence  of  a  party  implies  his  consent. 

A  personal  action  ex  delicto  brought  to  re- 
cover possession  of  goods  unlawfully 
taken  or  withheld. 

The  party  who  makes  an  answer  to  a  bill  or 
other  proceeding  in  chancery. 

A  writ  that  lies  for  the  distrainer  of  goods 
(when  on  replevin,  etc.)  against  him  who 
has  so  distrained,  to  have  them  returned 
to  him  according  to  law,  together  with 
damages  and  costs. 

Knowingly — an  allegation,  setting  out  the 
defendant's  previous  knowledge  of  the 
cause  which  led  to  injury  complained  of. 


329 


Scire  Facias 
(Sci.  Fa.) 


Seisin 


Simplex  commendatio 
Stare  Decisis 

Statute  of  Limitations 


Statu  quo 

Sub  potestate  viri 

Sui  juris 


Supra 
Tort 


Uberrima  fides 

Ubi  revera 
Ultra  vires 


The  name  of  a  writ  founded  upon  some 
public  record.  A  method  of  proceeding 
upon  a  mortgage  in  Pennsylvania.  Sci. 
fa.  to  revive  judgment. 

Possession  with  an  intent  on  the  part  of 
him  who  holds  it  to  claim  freehold  in- 
terest. 

Mere  recommendation  of  an  article. 

To  stand  by  the  decided  cases ;  to  uphold 
precedents;  to  maintain  former  adjudi- 
cations. 

A  statute  prescribing  limitations  as  to  the 
right  of  action  on  certain  described 
causes  of  action ;  that  is,  declaring  that  no 
suit  shall  be  maintained  on  such  causes 
of  action  unless  brought  within  a  speci- 
fied period  after  the  right  accrued. 

The  existing  state  of  things  at  any  grven 

date. 
Under,  or  subject  to,  the  power  of  another; 

used    of    a    wife,    child,    slave,    or    other 

person  not  sui  juris. 

Of  his  own  right,  possession  of  full  social 
and  civil  rights ;  not  under  any  legal  dis- 
ability or  the  power  of  another  or  guar- 
dianship. 

Above ;  upon ;  previous  part  of  book. 

Wrong;  injury;  opposite  of  right,  a  wrong 
or  wrongful  act.  for  which  an  action  will 
lie  ex  delicto,  as  distinguished  from  a 
contract. 

Abundant  good  faith,  absolute  and  perfect 
candor  or  openness  and  honesty;  the 
absence  of  any  concealment  or  deception 
however  slight. 

Where  in  reality;  when  in  trust,  or  in 
point  of  fact. 

An  action  of  a  corporation  which  is  be- 
yond the  powers  conferred  upon  it  by  its 
charter,  or  the  statutes  under  which  it 
was  instituted. 


330 


Unconscionable 


Non-negotiable 

Utile  per  inutile  non 
vitiatur 

Venire  facias  de  novo 


Writ  of  error 


A  contract  which  no  man  in  his  senses, 
not  under  delusion,  would  make,  on  the 
one  hand,  and  which  no  fair  and  honest 
man  would  accept  on  the  other. 

Means  not  negotiable,  cannot  pass  in  the 
business  world  as  a  negotiable  instru- 
ment. 

The  useful  is  not  vitiated  by  the  useless ; 
surplusage  does  not  spoil  the  remaining 
part  if  that  be  good  in  itself. 

A  fresh  or  new  venire,  which  the  court 
grants  when  there  has  been  some  impro- 
priety or  irregularity  in  returning  the 
jury,  or  where  the  verdict  is  so  imper- 
fect or  ambiguous  that  no  judgment  is 
reversed  on  error,  and  a  new  trial 
awarded. 

A  writ  issued  out  of  a  court  of  competent 
jurisdiction  directed  to  the  judges  of  a 
court  of  record  in  which  final  judgment 
has  been  given  and  commanding  them  in 
some  cases  themselves  to  examine  the 
record ;  in  others  to  send  it  to  another 
court  of  appellate  jurisdiction  therein 
named  to  be  examined  in  order  that 
some  alleged  error  in  the  proceedings 
may  be  corrected. 


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